On March 3, 2014, Steven Mason of McCarthy Tétrault filed
an Amicus brief in the Supreme Court of the
United States in the ABC, Inc. et al v. Aereo, Inc case, which will
settle a long-standing controversy about the extent of the public
performance right in U.S. copyright law.
Aereo's business model of re-transmitting TV broadcasts
without a license has been contentious from its inception.
Similar unlicensed services have been held to infringe copyright. But the Second Circuit
Court of Appeals ruled in a split decision in Wnet, 13 v. Aereo, Inc., 712 F. 3d 676 (2d
Cir. 2013) that Aereo's system was not a public performance,
because each transmission was of a unique copy of a work created at
a user's request.
However, the decision generated strong dissents within the Second Circuit and some
other courts have reached the opposite conclusion. See,
Community Television of Utah, LLC v. Aereo, Inc., No. 2:13
CV910DAK, slip OP. (D. Utah Feb. 2014), Fox Television
Stations, Inc. v. Filmon X LLC, 2013 WL 4763414 (D.D.C. Sept.
5, 2013), Fox Television Stations, Inc. v. BarryDriller Content
Systems, 915 F. Supp 2d 1138 (C.D. Cal. 2012).
The Supreme Court of the United States decided to hear the case
after all parties asked the Court to take it.
The brief, which was signed by a "who's who" of
rights holders, including the International Federation of the
Phonographic Industry (IFPI), International Confederation of
Societies of Authors and Composers (CISAC), the Australian
Copyright Council (ACC), the British Copyright Council (BCC), the
Canadian Media Production Association (CMPA), and the Society of
Composers, Authors and Music Publishers of Canada (SOCAN), as well
as a number of eminent international copyright scholars, argues
that international copyright and trade treaties, including the
Berne Convention, the WIPO Copyright Treaty, the
North American Free Trade Agreement and the
U.S.-Australia Free Trade Agreement, as well as the
legislative history of the U.S. Copyright Act itself, render the
Second Circuit's conclusion untenable.
The brief also highlights jurisprudence on the point from around
the world, including the Supreme Court of Canada's 2012
decision in Rogers Communications Inc. v. Society of
Composers, Authors and Music Publishers of Canada, which
adopted a purposive and technologically neutral analysis to reject
the premise underlying the Second Circuit's analysis: that each
transmission should be considered in isolation, without reference
to the "true character of the communication activity in
It is very unusual for a Canadian law firm to file documents in
the Supreme Court of the United States, as only U.S. lawyers can
appear before the court. But Mr. Mason's recognized expertise
as an IP litigator, his position as a member of the State Bar of
California and McCarthy Tétrault's extensive credentials
in international copyright law made him an excellent representative
for some of the world's largest international rights
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.
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