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POST WRITTEN BY: Sharleen Bailon (Executive Articles Editors ’16), J.D. Pace Law School

netNeutrality 4 dummies

For the public, the ideal situation is free and fast access to the Internet. On the opposite end, the big Internet Service Providers (hereinafter ISP), such as Comcast and Verizon, would prefer to charge everyone for everything connected to Internet services they provide. One example is charging for speed and accessibility. If you are a big company with the ability to pay for faster speed, then you can reach more users. Commission Document Verizon v. FCC, No. 11-1355 (D.C. Cir.), Federal Communications Commission (February 7, 2013), Conversely, the start-up sole proprietor would be limited to what he or she could afford. Id.

The government believed that ISPs would implement additional costs to their users. But the problems the public could encounter are not limited to increasing or additional costs. Essentially, ISPs could pick and choose which ads or websites users could access and which ones they would block. Daniel J. Wityk, Like A Good Neighbor A State Farm Solution to the Fcc’s Net Neutrality Limbo, 78 Brook. L. Rev. 1587, 1616 (2013)

In Hart v. Comcast of Alameda, the plaintiff’s complaint stated that Comcast’s “Internet management practices with respect to “peer to peer” (“P2P”) file sharing applications are unlawful, and unfairly discriminate against P2P applications.” No. C076350 PJH, 2008 WL 2610787, at *1 (N.D. Cal. June 25, 2008).

The Internet’s potential of raking in more profits for ISPs at the expense of the free flow of information allows “FCC to crack the Tittle II whip…[because] the ISP’s [are] acting like greedy petulant children”. Tom Bradley, Net Neutrality Didn’t Have To Come to This, Forbes (March 24, 2015). Thus, in 2010 the FCC submitted, for approval, new rules protecting net neutrality and by December 2010, the rule was finalized. In the Matter of Preserving the Open Internet Broadband Indus. Practices, 25 F.C.C. Rcd. 17905 (2010) (hereinafter Open Internet). In this rule, “internet service providers could not block websites or impose limits on users.” The White House, Net Neutrality, President Obama’s Plan for a Free and Open Internet, (last visited March 25, 2014). Unfortunately, this rule was struck down.

Verizon was not happy with the FCC’s new rule and challenged it in court. Andrew Zajac and Todd Shields, Verizon Wins Net Neutrality Court Ruling Against FCC, Bloomberg (January 14, 2014). In Verizon v. F.C.C., Verizon argued that FCC lacked statutory authority in implementing Open Internet. 740 F.3d 623, 634 (D.C. Cir. 2014). The D.C Circuit ruled for Verizon because Verizon and other ISPs are not considered “common carriers.” Verizon, 740 F.3d at 642. In the statute, the common carrier that provides basic services category is the only category FCC could monitor and regulate regarding discriminatory and blocking practices. Id.

The statutory authority in question is the Telecommunications Act of 1996, which gave FCC the power to regulate some, but not all, communication services. Verizon, 740 F.3d at 628. To determine what could be regulated, the Act divides these services into two categories: telecommunications carriers (basic services) information-service providers (enhanced services) Id. at 630. The public disagreed with the D.C. Circuits decision and used the Internet as a platform to reverse that outcome.

Fast-forward to February 2015, the F.C.C. approved the new Net Neutrality proposal and it is waiting to get published in the Federal Register making it official. Mike Snider et. al., What is net neutrality and what does it mean for me?, USA Today (February 24, 2015), But the big ISPs will not let it pass without a fight.

Related Reading: 

Mouse against Mau5

By: Nikki Crewe (J.D. candidate 16′)

Two prominent figures are going head to head in a Trademark dispute over their respective logos. Joel Zimmerman, an EDM artist known as Deadmau5, versus Walt Disney. Zimmerman is not only famous for his music, but also for the extremely recognizable helmet he wears during performances.1024px-Deadmau5_-_Rock_in_Rio_Madrid_2012_-_01 This “mau5-head” represents a mouse with a small cranium, a large white wide-set smile, two white eyes and two large ears. Zimmerman’s attorney points out that he has been using the mau5-head for about a decade worldwide and acquired Trademark registration of it in 30 countries. However, when Zimmerman applied to register the mau5-head in the United States, Disney opposed the registration claiming consumer confusion between the mau5-head and their own Mickey Mouse cartoon head insignia, which would cause damage to their sales since both marks would be in similar goods markets.

It’s important to note that registration of a trademark allows the holder to use their marks in the stream of commerce and protect against other business from using the owner’s mark. Potential trademarks are published every Tuesday in the Trademark Official Gazette which the United States Patent and Trademark Office supplies an online database and a PDF version. A person has 30 days to either (1) file an opposition to the trademark with the Trademark Trial and Appeal Board (TTAB); or (2) request an extension of time to file a notice of opposition if believed that damage will occur to the person opposing by this new registration.

Zimmerman took to Twitter making comments such as “lawyer up Mickey” and shooting back a cease and desist letter relating to a separate allegation of copyright infringement on Disney’s part.

The trouble here is, trademark protection, unlike copyright or patent protection, can last for however long as it is in use (provided proper forms are filled out over the years), meaning protection may virtually never expire. If Disney properly asserts their claims of potential damage and show surveys and other evidence of consumer confusion, then Disney may be able to have a sort of monopoly over any similarly styled mice heads.

If this litigation continues on in court without a settlement, we will know the answer to the question: Does the differing of sizing and colors of a mouse’s features really matter?

Related Materials:

Ryan Reed, Mouse Trap: Deadmau5 Preparing for Legal Battle With Disney, Rolling Stone (Sept. 3, 2014) http://www.rollingstone.com/music/news/mouse-trap-deadmau5-preparing-for-legal-battle-with-disney-20140903.

United States Patent and Trademark Office, http://www.uspto.gov/learning-and-resources/trademark-faqs (last visited March 25, 2015).

Eriq Gardner, In Defense of Disney’s Opposition to the Deadmau5 Trademark, Billboard (Sept. 3, 2014, 3:56PM) http://www.billboard.com/articles/6236698/deadmau5-trademark-disney-defense.

Stevo, Deadmau5 Sends Letter To Disney On Copyright Infringement, EDM Sauce (Sept. 4th, 2014) http://www.edmsauce.com/2014/09/04/deadmau5-sends-letter-disney-proving-broke-copyright-laws/.

Blurred Lines blurs the lines

By: Adam Blaier (New-Media-Editor 16′)

Blurred_Lines_–_Robin_Thicke_single_coverWhat might have been your favorite song of 2013-2014 was recently held to be infringing on what might have been your Grandparents favorite song of the 70s. A United States District Court Judge for the Central District of California, John A. Kronstadt, and eight jurors ruled that ‘Blurred Lines,’ the smash hit by Robin Thicke and Pharell Williams,  infringed on Marvin Gaye’s song ‘Gotta Give it Up.’  If you need to compare the two songs, click here and listen for yourself. 17 U.S.C. §102 (2015) sets out that  “[c]opyright protection subsists, …, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 

It is also important to note the elements needed to prove infringement under 17 U.S.C. section 106 which are: (1) the Plaintiff must allege and prove ownership of a valid copyright (usually done by registering); and  (2)the Plaintiff must prove that the defendant violated one of the exclusive rights reserved to the copyright owner under section 106.  (The Plaintiff should also show that the defendant in fact obtained the protected expression of the copyright holder, and used that expression in the defendants work). 

Interestingly enough, the lawsuit started in 2013 when Thicke and Pharrell filed a lawsuit against the Gaye family, and tried to stop the accusations of infringement before they could get off of the ground. Thicke & Pharrell were ordered to pay Gaye’s children  $7.3 million, which is a combination of $4 million in damages and $3.3 million from the profits of the song. Thicke & Pharrell argued that they only took “feel” of Gaye’s record, while the song in its entirety was created in their hearts & minds. They further argued the Gaye family only owns the compositional elements of the record. The Gaye family hired musicologists who successfully articulated the similarities between the two songs. It seems like he did a good job playing on the jurors’ heartstrings portraying Thicke and Pharrell as music thieves. Robin Thicke didn’t do himself any favors during this trial. It came to light that he was intoxicated in the studio during this record, and Pharrell was the mastermind behind the song. In a GQ article, Thicke claimed that Gaye’s song ‘Gotta Give it Up’ was one of his favorite songs (which the defense cited).

The outcome of this case could lead to a very slippery slope in the music industry. This case seems to slightly blur the lines of copyright protection. If not overturned, the precedent set might bring an avalanche of litigation from older artists and their estates, who made a huge impact on their genre. In my opinion, the judge stretched the limit of what “original works of authorship” means by deciding a few chords that were similar, is enough to have infringement. However, if Thick and Pharell simply asked for a license, or permission from the copyright holder (Gaye’s family) this could have been resolved a long time ago.


related readings:

Eriq Gardner, Blurred Lines’ jury orders Robin Thicke and Pharrell Williams to pay $7.4 million, The Hollywood Reporter (March 11, 2015, 4:04 pm)

In Court, You decide: Does ‘Blurred Linessound like ‘Got to Give It Up?, FoxNews.com (March 11, 2015)

17 U.S.C. §102 (2015) https://www.law.cornell.edu/uscode/text/17/102

KORY GROW Robin Thicke, Pharrell Lose Multi-Million Dollar ‘Blurred Lines’ Lawsuit, Rollingstone.com (March 10, 2015)

STELIOS PHILI,  Robin Thicke on That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, and His New Film, GQ.com, (MAY 07, 2013, 1:20 AM)


By: Adam Blaier (New-Media-Editor 16′)


As the SEALs, IPSO, and PIPSELF get ready to host some of the best in the music & entertainment industry this week, and the IVY Sports Symposium approaches next Friday, I have some wisdom to share for the younger/less experienced students. Some people say, it’s not what you know; it’s who you know. Others believe “book smarts” is the end all be all. I would like to share my opinion.

I think it is a combination of both and depends on what field you plan to go into. You should do your best to keep up-to-date with the latest news in the area you wish to practice in. That can be accomplished through social media; apps like ‘Flipboard’ (my favorite news gathering app), or simply reading a blog/news outlet. I would put an equal weight on the ‘who you know’ aspect. After being accepted into the Manhattan Sports Business Academy this summer, I saw what the power of networking & relationship building can truly accomplish. I met so many amazing people in the sports & entertainment industry, and learning from them was an honor (shout out to Ben Sturner, Dave Oestreicher, and Lorne Segall).

The biggest barrier to networking is fear. People are scared to hear the word “no,” or that someone won’t have time for them. Being a somewhat introverted person, I had to conquer my fear of being rejected a long time ago if I wanted to succeed. A lot of people have told me I could not do something, including getting into law school. You need to put that fear aside and be comfortable with yourself. I love sports and, for me, talking to an executive of a Fortune 500 sports company was easy because I was confident. That ties into the ‘smarts’ part. I was confident because I keep informed with sports, entertainment, and I.P. law as much as possible. It is obviously important to read the news in general, but when trying to engage in a conversation about I.P./sports/Ent’t law, my knowledge of the Arab-Israeli conflict won’t help me much.

Networking is a great way to find future employment, and build relationships. I emailed over ten lawyers asking them for an informational interview, and only 1 replied. The gentleman who did reply happened to be the GOAT of I.P. litigation at one of the biggest firms in New York City. He gave me great advice, and I hope to build on that relationship.

As we prepare to have these great speakers come to Pace Law School, here are a few suggestions for people who will eventually try to seek employment in the guests companies. Wear a suit or business attire. Do not ask for an internship during the event. Make business cards, exchange them, and send a follow-up email the next day. Make sure you engage in the conversation, ask questions, and make a statement. Do not let them forget who you are. That way, when you send the email, and any future email, they will remember you. I remember speaking with Eugene Lee, Esq. for a few minutes when he came to visit Pace last year. I met him again in the summer with MSBA, and he remembered who I was. It is a nice feeling, and I know I have a positive relationship to build on going forward.

So to those who say it’s not what you know; it’s who you know, and the others who say ‘book smarts’ is the only way, I politely disagree and say they are both important, you just need to utilize them the right way.

By: Adam Blaier (New-Media-Editor, ’16)

It’s hard to imagine Atlantic City, NJ fully recovering from hurricane Sandy.  The boardwalk was destroyed, and the casinos have been running dry. The Revel Casino, which cost $2.4 billion to build, just recently sold for $110 million. There seems to be little the state can do to help. Oh wait, except for allowing a multi-billion dollar sports gambling industry to thrive again.

Gov. Christie has signed a new sports betting bill into law. The bill will allow casinos and racetracks to have sports betting in NJ, as long as the NJ government doesn’t regulate it. Sports betting was illegal for a while in NJ because of the Professional and Amateur Sports Protection Act, signed in 1992, which made it illegal for a governmental entity to regulate the sports gambling industry, for amateur (NCAA) or professional (NFL, NBA, NHL, MLB, etc..) leagues. The leagues and NCAA won an injunction against NJ’s bill that was proposed over a year ago. The new S-2460 bill closely tiptoes around the federal law, and partially repeals state prohibitions, requirements for permits and licenses, and authorizations for sports gambling. The Monmouth Park horse race track will began taking bets on October 26th.

I believe sports’ gambling is one of the few things the NJ Government can do to save Atlantic City, and restore the “Boardwalk Empire”. Some people like to gamble and should be allowed to do so. They believe it brings more excitement to the games. Why shouldn’t gambling involve sports betting since, according to some, it makes the game more intense? Advocates would argue that sports betting could bring revenue from people who live out of state. Atlantic City is conveniently located within 2.5 hours of NYC, Philly, and Baltimore.

As I type this (10/20/14), I got a notification from my ESPN app, letting me know that the NFL and other leagues plan to move for an injunction against this bill. The leagues will have to prove that immediate & irreparable harm will happen as a result of the betting at the Monmouth Park track this weekend. Opponents of the bill, not involved in the lawsuit, would argue that gambling is immoral and that it leads to gambling addiction, among other moral, policy, and social justice arguments.

What do you think about this NJ bill? Good for sports, or bad for #Sportsbiz?


A U.S. District judge in NJ has granted a restraining order for the leagues. As discussed, the leagues needed to show there would be irreparable harm, if betting was allowed this weekend, at the Monmouth track. They succeeded, and halted betting this past weekend. The legal battle continues for NJ.



Related reading:

Bob Jordan & Steve Edelson, Gov. Christie Signs New Jersey Sports Betting Bill into Law, USA Today (October 17, 2014, 6:40 pm).  

Mike Wilkening, Christie signs bill allowing sports betting in New Jersey, Pro Football Talk (October 17th, 2014)

2014 N.J. Laws A3711.                                                                 http://legiscan.com/NJ/text/A3711/id/1045970

28 USC Ch. 178: PROFESSIONAL AND AMATEUR SPORTS PROTECTION  http://uscode.house.gov/view.xhtml?path=/prelim@title28/part6/chapter178&edition=prelim

Mike Wilkening, Federal judge rules for NFL, other leagues in N.J. sports betting case, Pro Football Talk (March 1, 2013)

Charles Bagli, Revel Casino in Atlantic City is sold to Real Estate Company, NYT (OCT. 1, 2014)

David Purdum, NCAA, NFL seek to stop N.J. betting, ESPN, (October 20, 2014, 4:20 PM)

David Purdum, Gambling Blocked at Monmouth Park, ESPN, (Oct. 24th, 2014)

By: Adam Blaier (New-Media-Editor, ’16)


As you may know, California recently passed a law, which will allow cellphone users to have software/hardware on their phones allowing them to kill their phone if it is stolen. The kill switch option will be the default setting on the phone, and users will be able to switch it off. The bill states,

 This bill would require that any smartphone, as defined, that is manufactured on or after July 1, 2015, and sold in California after that date, include a technological solution at the time of sale, which may consist of software, hardware, or both software and hardware, that, once initiated and successfully communicated to the smartphone, can render inoperable the essential features, as defined, of the smartphone to an unauthori

zed user when the smartphone is not in the possession of an authorized user. The bill would require that the technological solution, when enabled, be able to withstand a hard reset, as defined, and prevent reactivation of the smartphone on a wireless network except by an authorized user.

Starting July 1st, 2015, retailers who knowingly sell phones without the

kill switch, will be fined between $500-$2500. The kill switch places the phone into an unbreakable coffin. It cannot be reset, have its memory wiped, or replaced in the event it is stolen. The backers of this law believe that having this setting on a phone will deter theft of cellphones. Apparently iPhone theft is so common, it has a nickname called “Apple Picking.”

My view of the law is different. I wonder what would happen if a 3rd party accessed the kill switch. I imagine one would be upset if their phone was killed without their knowledge, from an unknown source. I think it leaves the door open for the government to intrude a little more. We already know the NSA is spying on people, and the Patriot Act (while I believe is protecting people) gives the government free reign when it comes to protecting America. I am not a conspiracy theorist by any means, b

ut I do not like the idea of my phone being able to be killed by anyone who isn’t me.

Additionally, how will all of the manufacturers install this hardware/software on all the phones? I know Apple is equipped with this feature. I am not sure about Android, or other opera

ting systems. It makes things a little more difficult, since manufacturers will have to create their phones with the California law in mind, rather than be able to mass-produce phones for everyone. What will happen if more blue states enact the law, and the red ones don’t? Will cellphone manufacturers have to create separate phones for each state? Will they all have to conform to a law they may not agree with, in order to make sales quotas? All these questions are unanswered, but in my opinion, valid.





Suggested readings:

Cal. Bus. & Prof. Code § 22761 (2014)

Dave Johnson, How California’s Kill-Switch Law Could go Awry, Moneywatch  (Aug. 27, 2014, 3:39 PM), http://www.cbsnews.com/news/how-californias-kill-switch-law-could-go-awry/

David Lewis, California Passes Smartphone Kill Switch Law, Forbes Tech, (Aug. 29, 2014, 3:00AM ), http://www.forbes.com/sites/davelewis/2014/08/29/california-passes-smartphone-kill-switch-law/

The Editorial Board, California’s smart on phone ‘kill switch’: Our View, USA Today (Sept. 7, 2014, 6:57 p.m. EDT), http://www.usatoday.com/story/opinion/2014/09/07/smartphone-kill-switches-iphone-california-ctia-editorials-debates/15257119/-

Declan McCullagh, NSA spying flap extends to contents of U.S. phone calls, CNET,(June 15th, 2013 @ 4:39 pm), http://www.cnet.com/news/nsa-spying-flap-extends-to-contents-of-u-s-phone-calls/

Ed Grabianowski, How the Patriot Act Works, How Stuff Works, (Sept. 19th, 2014), http://people.howstuffworks.com/patriot-act.htm

By: Samantha Lynn Garrison (’15), Pace Law School

Have you ever inserted a USB plug connector correctly on the first try? If you answered yes, you’re either lying or I should applaud you.  Almost everyone has experienced the attempted first try insertion of a USB and failed.  Whoops wrong way, flip it over, still the wrong way, flip it back …perfect. Well these five seconds of frustration may soon officially come to an end.  Back in February of 2014, Apple Inc. filed a patent application for a USB plug connector that can be inserted with either side up.  According to the application, published on August 24, 2014, the plug connector will be “compatible with any current or future electronic device that includes a standard USB receptacle connector”.   This is a plus.  Apple will not force you to purchase the newest computer models to utilize your reversible USB drive.

But does the world really need a new USB plug or is the reversible USB feeding into the fast-pace, microwave age of impatience? According to the application, “users may incorrectly insert a plug connector into a corresponding receptacle connector, which may potentially result in damage to the connectors and/or user frustration”.  It’s completely reasonable for a company to seek to protect its product from damage such as that which can be caused by forcing a USB into a port incorrectly, particularly since, damage is being caused by the customer. Not only does this force Apple to assign its technicians to fix this easily preventable problem, but it can also cost them money, as any product covered by the warranty will have the repair done for free. However, is the solution a new invention that needs to be purchased separately from the USB? Why not label the current USB with a bright color indicating the correct side of insertion?  Or perhaps users should take more time in determining the proper side up.

Although technology is constantly improving, and making the lives of its users easier, there are times that the additional cost and implementation of a new product is unnecessary. A label, or lack of user laziness, could easily garner the same result. Further, if a user is truly being frustrated by the insertion of a USB into a computer, then the technology itself may be more of an issue. Even at a young age, children play with toys that involve placing the right shaped piece into the correct hole. Unless an individual happens to be James Bond seeking to steal secrets from an evil mastermind, five seconds of flipping a USB should not cost an individual enough time to amount to any serious frustration. Either way, if granted, the patent would leave Apple with another genius moneymaker that will be flooding the shelves.

Suggested Reading:

By: Adam Blaier

The game-changing college sports court case (no pun intended) has been decided, and could change college sports forever. O’Bannon v. NCAA is a landmark case in sports and intellectual property. Edward O’Bannon was a college basketball player at UCLA who argued that the NCAA should pay him for using his image in video games and on TV. Mr. O’Bannon and 20 former football and basketball players went to court for an injunction against the NCAA rule that prevented players from collecting money for their likeness. The plaintiffs argued that players should get a share of the Collegiate Licensing Company (CLC) and TV broadcast revenues.

The plaintiffs needed to show U.S. District Judge Claudia Wilken (Northern District of California) that the NCAA violates anti-trust law, and a market is being harmed. Further, they needed to prove there was a contract or conspiracy to fix prices, the agreement unreasonably restrained trade under a rule of reason analysis, and the restraint affected interstate commerce.

Plaintiffs argued that the college education market & group licensing market were being harmed by the NCAA rules. They further argued that; the rules limit competition for collegiate athletes, athletes need to pay more money for school, the rules facilitate an early exit for some athletes, there is a limited consumer choice due to the limited number and quality of licensed products, and the rule spurs inefficient substitution of funds; such as excessive expenses on recruiting, salaries of coaches, and expensive facilities. It was noted that some NCAA coaches make over $ 1.5 million dollars per year.

The NCAA, in response, argued that; college athletes operate under the title of amateurs, there would be a competitive imbalance among schools, there would be damage to integration of athletics and academics, and it will have a participation impact. To the NCAA’s dismay, the ruling was a significant blow, and dismissed almost all of their defenses.

The judge made a few important rulings, which will have a major impact on college sports going forward. In an earlier ruling on a specific issue, Judge Wilken rejected O’Bannon’s argument that live TV broadcast of games and commercials are speech. Plaintiffs were trying to argue that every time a player gives a pre-game, post-game, in game, or other interview, it was protected speech, which they should be compensated for. This was rejected.

Judge Wilken’s injunction has two components: (1) NCAA couldn’t cap the amount of scholarship below the actual cost of attendance, and (2) the NCAA can’t ban schools from creating a trust fund to pay players equal shares for their use of their likeness. The judge created a number, (a minimum) $5,000 dollars per season of eligibility, for the trust fund. The schools are not allowed to collude on the price they set, thus creating competition. This would go into effect for the freshman class of 2016, if it were not overruled in the appeal.

This is an interesting ruling. During my sports law symposium tour this past year, this topic came up a lot. I came to the conclusion that a trust fund would be the best way to compensate athletes. I do not think it would be fair for athletes to be paid in college and receive compensation while attending school. However, a trust fund they could touch after school would be a fair way to compensate athletes, and could be used for medical expenses and bills accrued during college. Most schools (that can afford it) will provide more than $5,000 dollars per athlete. My biggest issue with paying players is that when a regular student graduates from college, they come out with over $100,000 in debt (or more). A student athlete on scholarship can graduate with $0 in debt (or a few thousand at most). I sympathize with athletes when it comes to the toll playing a sport has on one’s body (as a college boxer, I still feel some of the injuries I sustained while representing my school).

This decision is favorable for athletes who play in revenue-generating sports (football and basketball). I am unsure how it will affect non-rev sports, such as wrestling, volleyball, intramural, and others. Penn State football revenue pays for every sports program except basketball. If the revenue is reduced, will other sports suffer or not be allowed to run at all? This decision will change the landscape and rules of college sports forever (if it is not overturned). The fact that there will never be an NCAA football or basketball game ever again saddens me. NCAA schools will have to adjust, as will the fans. This case comes right after an announcement by the NCAA allowing the power 5 conferences more autonomy. The shift is in the student-athlete’s favor. There are several more lawsuits against the NCAA, and this ruling is just one of many to come.


Some suggested reading

  1. http://www.cbssports.com/collegefootball/writer/jon-solomon/24582226/ed-obannon-vs-ncaa-a-cheat-sheet-for-college-sports-on-trial – for context about the trial
  2. http://www.usatoday.com/story/sports/college/2014/08/08/ed-obannon-antitrust-lawsuit-vs-ncaa/13801277/ – for the decision
  3. http://www.cbssports.com/collegefootball/writer/jon-solomon/24654805/qa-what-the-obannon-ruling-means-for-the-ncaa-schools-and-athletes – for some quick facts

Post Written By: Rikki Bahar

Hulu, Roku, Amazon TV, Netflix – we all thought that this was the new way to watch television. But Aereo took free TV to a whole new level. And now SCOTUS is finally putting its foot down.

Aereo provided customers with the ability to stream broadcast television programs, only a few seconds behind the live program, by connecting to small antennas housed in a centralized warehouse. SCOTUS found that this equated to “performing” copyrighted works and performing them in “public” within the meaning of the Copyright Act.1

Petitioner American Broadcasting Companies, Inc. (ABC), and television producers, marketers, distributors, and other broadcasters alike, who own the copyright to these programs, are angry. While they license their programs to cable networks to air live, Aereo comes along and circumvents the system giving viewers the option to opt out of their cable packages all together and still enjoy their regularly broadcast programs. For the mere price of $8 to $12 a month and few-second delay.

Others are grateful for the decision and the opportunity to capitalize on Aereo’s former subscribers. Only a few days after the decision, Simple.TV tweeted, “Former Aereo customer? Join the Simple.TV Family.” Simple.TV sells hardware that allows viewers to stream television to digital devices or watch web video on television sets. They provide users with their own antenna and box to record programs on a hard drive, which they can then connect to the device. So, what’s the difference? Aereo owned the antennas and captured the signal for users in a remote location. “Where you capture the signal makes all the difference,” said Simple.TV’s owner, Mark Ely. His company, on the other hand, “fits squarely in fair use.”2

Consumers seem to side with Mr. Ely and creators of companies like Aereo. Cable subscriptions are down by seven percent in the U.S., while use of streaming services has increased by about thirty percent.3 But what does this downfall really mean for the advancement of technology? Well, if there is no more cable, then no more ABC. Eventually, this could stop the number of televisions shows being produced and Aereo-type companies would have to create their own shows (a la Netflix). Some think the decision will halt new technology, but sometimes you have to play the game to create fair competition and keep the incentive to continue producing shows.

The better way to keep innovation alive, while incentivizing broadcasters and producers to create new content is best summed up by Leslie Moonves, the chief executive of CBS. “We are not against people moving forward and offering our content online and all sorts of places, as long as it is appropriately licensed. Innovation is still alive and well and thriving.”4 So to all those innovators out there: when in doubt…get a license.

  1. Am. Broad. Companies, Inc. v. Aereo, Inc., 13-461, 2014 WL 2864485 (U.S. June 25, 2014) (“In 1976, Congress amended the Copyright Act to clarify that to “perform” an audiovisual work means “to show its images in any sequence or to make the sounds accompanying it audible.” § 101. Thus, both the broadcaster and the viewer “perform,” because they both show a television program’s images and make audible the program’s sounds. Congress also enacted the Transmit Clause, which specifies that an entity performs when it “transmits … a performance … to the public.” Ibid. The Clause makes clear that an entity that acts like a CATV system itself performs, even when it simply enhances viewers’ ability to receive broadcast television signals. Congress further created a complex licensing scheme that sets out the conditions, including the payment of compulsory fees, under which cable systems may retransmit broadcasts to the public. § 111. Congress made all three of these changes to bring cable system activities within the Copyright Act’s scope…Aereo also performs petitioners’ works “publicly.” Under the Clause, an entity performs a work publicly when it “transmits … a performance … of the work … to the public.” § 101. What performance, if any, does Aereo transmit? Petitioners say Aereo transmits a prior performance of their works, whereas Aereo says the performance it transmits is the new performance created by its act of transmitting. This Court assumes arguendo that Aereo is correct and thus assumes, for present purposes, that to transmit a performance of an audiovisual work means to communicate contemporaneously visible images and contemporaneously audible sounds of the work. Under the Court’s assumed definition, Aereo transmits a performance whenever its subscribers watch a program
  2. Emilly Steel, After Supreme Court Ruling, Aereo’s Rivals in TV Streaming Seize Opening, N.Y. Times (June 29, 2014), http://www.nytimes.com/2014/06/30/business/media/after-supreme-court-ruling-aereos-rivals-in-tv-streaming-seize-opening.html?_r=0
  3. Id
  4. Id



After eight years, the United States Patent and Trademark Office (USPTO) has finally handed down a decision in a case against the Washington Redskins known as Blackhorse v. Pro-Football, Inc. The petitioners in cancellation No. 92046185, Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Cover, Jillian Pappan, and Courtney Tsotigh received a decision in their favor when the USPTO canceled several trademarks with the Redskins name. After the ruling, Amanda Blackhorse stated “We filed our petition eight years ago, and it has been a tough battle ever since… I hope this ruling brings us a step closer to that inevitable day when the name of the Washington football team will be changed.” The decision comes as a surprise to some, and the potential impact is still unknown. The USPTO came to the conclusion that since roughly one third of the Native American Population was offended by the term “Redskin,” the term could be deemed offensive by a substantial composite of Native Americans. The following is an excerpt from the decision.

 The record establishes that, at a minimum, approximately thirty percent of Native Americans found the term REDSKINS used in connection with respondent’s services to be disparaging at all times including 1967, 1972, 1974, 1978 and 1990. Section 2(a) prohibits registration of matter that disparages a substantial composite, which need not be a majority, of the referenced group. Thirty percent is without doubt a substantial composite. To determine otherwise means it is acceptable to subject to disparagement 1 out of every 3 individuals, or as in this case approximately 626,095 out of 1,878,285 in 1990.215 There is nothing in the Trademark Act, which expressly prohibits registration of disparaging terms, or in its legislative history, to permit that level of disparagement of a group and, therefore, we find this showing of thirty percent to be more than substantial.1

So what does all this mean for teams such as the Kansas City Chiefs, Atlanta Braves, Cleveland Indians, Chicago Blackhawks, Florida State Seminoles, and the thousands of high schools, and youth leagues? There are a few answers to that question. First, it could mean nothing at all. The other team names that are not considered ethnic slurs might not offend the Native American Population. If a substantial composite of Native Americans are not offended, then the licenses and trademarks are fine. Bud Elliott of Tomahawk Nation, wrote,the Seminole Tribe of Florida, the Tribe originating in the state where FSU exists, supports the name in a public way.”2 If this was the case for most of the other team names, I do not foresee any issues arising in the same way. However, he also pointed out that “[e]ven if other Seminole tribes, like the Tribe of Oklahoma were to object, it seems like a far smaller connection and objection, though the language that it “need not be a majority” of the referenced group is perhaps a bit unsettling.”3

The next scenario would be that which Bud points out in the second quote above. If different Native American tribes across the US state they are offended by the team names, what will a court determine as a composite? Will the court look for a composite of that community which states they are offended, such as the Seminole tribe in Oklahoma? Will they take the composite of the whole Native American community as they did with the Redskins? Across the country, smaller communities are agreeing to change their names if they are deemed offensive. In an article written by Ken Belson and Edward Wyatt of the New York Times they noted that “Outside of the courts, Native American groups have successfully persuaded hundreds of high schools and colleges, including Syracuse, Miami of Ohio and St. John’s, to change their team names over the years by appealing to alumni, students and benefactors.”4 On a small scale an impact can be made pretty swiftly.

In some places however, the debate is not so easy. Neshaminy high school in Langhorne, Pennsylvania has this debate on their hands. Queen Muse of NBC Philadelphia noted “members of the editorial board of the school’s student newspaper, the Playwickian, have been battling school officials over use of the term in articles and ads in the paper since late 2013.”5 The school’s editors have declared the word Playwickian as a racial slur, and stopped using it in the newspaper on several occasions. “The student’s push to ban the word as a racial slur mirrors the efforts of U.S. senators and some minority advocacy groups who are calling for the National Football League to give the Washington Redskins team a new name.”6  (This is referring to Washington Democrat Maria Cantwell’s letter that was signed by fifty senators, asking the Redskins to change their name.) Even in small town America, this debate is passionate.

The issue is more controversial, where large amounts of money are involved like in professional sports. “Professional sports teams have been more resistant to calls to change their names, although some, including the Washington Wizards, who used to be known as the Bullets, have acted in the face of public pressure. Other teams, including the Cleveland Indians and the Kansas City Chiefs, have also been criticized for not changing their names.”7 The trademarks and logos of these teams are a huge part in their revenue stream.

The NFL as a whole could feel a slight impact with regard to this ruling. The Redskins are a valuable franchise. The NFL structured their system to be a pot for every team to put their money into, and then to be divided between everyone.  Maury Brown noted, “The ruling has other effects that impact the Washington Redskins. It limits the revenue the club and the NFL can earn from selling jerseys and other merchandise with the name and logo. It removes the team of the rights to the term “Redskinettes,” the nickname for its cheerleaders. And, the team of use of the logo on their helmets.”8 However, Bob Raskopf the Redskins attorney is confident they Redskins will win the appeal.  Most analysts believe the ruling “is unlikely to have an immediate financial impact while the team appeals the ruling. Even if the decision is not overturned, the Redskins can use the name and enforce its trademarks using common-law rights.”9

The issue will not be settled for a long time, and only time will tell if there will be an impact on teams whose names are associated with Native Americans or other ethnic or cultural groups. It is a fascinating case for lawyers who are interested in intellectual property and sports.

  1. Blackhorse v. Pro-Football, Inc., Cancellation No. 92046185, (T.T.A.B. 2014)
  2. Bud Elliot,  Impact of Washington Redskins Trademark Ruling on Florida State Seminoles, Tomahawk Nation (Jun 18 2014, 10:41am)http://www.tomahawknation.com/2014/6/18/5820794/washington-redskins-trademark-ruling-florida-state-seminoles-fsu
  3. Id.
  4. Ken Belson & Edward Wyatt, Redskins Lose Ruling on Trademarks, but Fight Isn’t Over, N.Y. Times (June 18, 2014),http://www.nytimes.com/2014/06/19/sports/football/us-patent-office-cancels-redskins-trademark-registration.html?_r=1.
  5. Queen Muse, Redskins Patent Ruling Impacts Local High School Team, NBC (Philadelphia), (Thursday, Jun 19, 2014),http://www.nbcphiladelphia.com/news/politics/Redskins-Patent-Ruling–263711371.html
  6. Id.
  7. Belson & Wyatt, supra note 4
  8. Maury Brown, In Landmark Decision, U.S. Patent Office Cancels Washington Redskins Trademark RegistrationForbes (6/18/2014 @ 11:59AM),http://www.forbes.com/sites/maurybrown/2014/06/18/in-landmark-decision-u-s-patent-office-cancels-washington-redskins-trademark-registration/
  9. Belson & Wyatt, supra note 3.

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