This is kind of weird. The entirety of the judgment in WNET
v Aereo Inc (2d Cir, 16 July 2013) is taken up by the dissent
of Chin J, the majority of the 2d Circuit having decided without
reasons that the appellant broadcasters' appeal should not be
reheard by a full panel of the court. Aereo captures TV broadcasts
and retransmits them to its subscribers by streaming them over the
internet, doing so without the permission of the holders of
copyright in the broadcasts. Aereo argued that this does not
infringe the holders' exclusive rights 'to perform the
copyrighted work publicly', on the grounds that its
transmissions are private rather than public. Each Aereo subscriber
gets a tiny antenna, allowing him or her to make what Aereo
describes as a unique copy of the TV show for private consumption.
Based on its earlier decision in Cartoon Network LP LLP v CSC
Holdings Inc, 536 F2d 121 (2008), the majority of the 2d
Circuit accepted this argument (Chin J dissenting) and then refused
to rehear the case.
In his dissent from the rehearing decision, Circuit Judge Chin
expressed the view that the case raises questions of exceptional
importance that need to be addressed by a full-court rehearing in
order to secure uniformity in the 2d Circuit jurisprudence, given
that other decisions of the court have found activity similar to
that of Aereo to infringe. Furthermore, in his view, the 2d
Circuit's Cartoon Network decision was just plain
wrong (and the lower-court judge they overruled was Chin J when he
was a district court judge); and even if correct, Cartoon
Network was misapplied by the majority in their disposition of
the WNET appeal. On the substantive IP point, Chin J
concluded that Aereo clearly 'transmits' the work of others
for the purposes of copyright law. To say that those transmissions
are 'private' would be to elevate 'form over
substance', in part because it would fail to aggregate
individual transmissions and essentially bless 'a sham ...
designed solely to avoid the reach of the Copyright Act'
through a loophole created by a misguided decision.
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
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