September 2012: Internet Litigation Update

Internet Retransmission of Television Broadcasts Approved:  Judge Alison Nathan of the Southern District of New York ruled on July 11, 2012, that the Internet retransmission of over-the-air television signals is not copyright infringement. American Broadcasting Companies sought to prohibit Aereo, Inc. from providing its users with free access to television programs captured at their instruction by Aereo’s antennas and maintained on its hard disks. In denying ABC’s application for preliminary injunction, Judge Nathan ruled that there is no “public performance” of the works Aereo records and, hence, no copyright infringement. Aereo characterized its system as “allowing users to rent a remotely located antenna, DVR, and Slimbox-equivalent device, . . . to access content they could receive for free and in the same manner merely by installing the same equipment at home.” The court acknowledged that if Aereo did allow the public to access freely the recorded programs, it would be engaging in a “public performance” of copyrighted works and would be liable for infringement. The court also acknowledged that under Cartoon Network LP v. CSE Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), the mere transmission of a performance is itself a “performance” for infringement purposes. However, Aereo’s users could only access programming that they, themselves, had selected, meaning that they merely enjoyed “a service that could also be accomplished by using any standard DVR or VCR.” Accordingly, Aereo’s service was held not infringing. The case is American Broadcasting Companies v. Aereo, Inc., 12 Civ. 1543 (AJN) (S.D.N.Y. July 11, 2012).

Employer that Provided Internet Connectivity Held Subject to Suit: Internet service providers (“ISPs”) generally enjoy an absolute immunity with respect to content provided by others if they play no role in gathering or editing that content. The narrow exceptions concern federal criminal liability and intellectual property infringement. When those concerns were not implicated, the courts have for many years interpreted Section 230 of the Communications Decency Act of 1996, 47 U.S.C. § 230, broadly and have used it to protect ISPs that refused to take down even clearly libelous materials. However, the sense of comfort that an ISP need not concern itself with the content of materials posted by others has recently been called into question by an Illinois appeals court, which held that an employer could be found liable for failing to take down an employee’s threats made to a third party. The court concluded that irrespective of Section 230, the employer could be found liable for negligent supervision because its duty to supervise its employees “is distinct from any conduct like editing, monitoring or removing offensive content published on the Internet.” The case is Lansing v. Southwest Airlines Co., 212 Ill. App. (1st) 101164 (Ill. Ct. App. June 8, 2012).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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