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Two new cases of note


by Barry Werbin

First, the CD Cal. granted a preliminary injunction on Dec. 27, 2012, in favor of multiple broadcast network plaintiffs in Fox Television Stations, Inc., v. Aereokiller, LLC. Aereokiller is a post-Aereo copycat that relied on the SDNY’s Aereo and 2d Circuit Cablevision decisions as a defense to infringement claims based on the public performance right respecting the retransmission of broadcast TV content. The California court expressly rejects Aereo (and seemingly Cablevision) as being contrary to 9th Circuit precedent; however, the court limited the scope of the preliminary injunction solely to within the 9th Circuit, because the applicable law in other Circuits (including the Second Circuit) respecting the transmission and public performance right has not yet been decided or is conflicting. Of course it remains to be seen how the 2d Circuit decides Aereo, which is currently sub judice.

The second important decision comes out of the 9th Circuit in a case from Washington state, and addresses the extent of personal jurisdiction under the Due Process Clause in copyright cases. Washington Shoe v. A-Z Sporting Goods (9th Cir. 2012). Here the court finds that even though an out-of-state defendant, which had been purchasing shoes from the Wash. based plaintiff, had no actual contacts with Washington, when the defendant intentionally started selling counterfeit shoes the “injury” was where the copyright owner was located and, because the acts were intentional, the defendant was deemed to have purposefully directed its unlawful activities into the state of Washington. Apart from the requirement of “intent,” the 9th Circuit’s decision also jives with the NY Court of Appeals’ 2d Circuit certified question opinion from 2011 in Penguin Group (USA) Inc. v. American Buddha, 640 F.3d 497 (2d Cir. N.Y. 2011, adopted by the 2d Circuit, where the NY Court of Appeals opined that “a New York copyright owner alleging infringement sustains an in-state injury pursuant to CPLR 302(a)(3)(ii) [long arm] when its printed literary work is uploaded without permission onto the Internet for public.