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Time Warner Cable and Viacom Take iPad Dispute To Court

Time Warner Cable’s dispute with Viacom over the question of whether the cable company is allowed to stream certain television channels onto its customers’ iPads within the confines of their own homes spilled into court Thursday when both sides asked the court to enforce their interpretations of their business contracts.



Time Warner Cable’s dispute with Viacom over the question of whether the cable company is allowed to stream certain television channels onto its customers’ iPads within the confines of their own homes spilled into court Thursday when both sides asked the court to enforce their interpretations of their business contracts.

Time Warner Cable’s free iPad app, which allows its existing customers to access some of their channels through the iPad within the confines of their homes, launched March 15 with 32 channels.

Viacom says that its executives discovered Time Warner Cable’s plans to launch its iPad app shortly before the March 15 launch date. Its executives told Time Warner Cable that its contracts didn’t allow for the streaming of Viacom’s channels, but that the cable company went ahead and included the channels anyway.

Since its launch, the app has been downloaded 360,000 times.

“We have steadfastly maintained that we have the rights to allow our customers to view this programming in their homes, over our cable systems, without artificial limits on the screens they can use to do so, and we are asking the court to confirm our view,” Marc Lawrence-Apfelbaum, Time Warner Cable’s executive vice president and general counsel said in a statement to the press Thursday.

Time Warner Cable filed a motion for declaratory relief with federal district court for the Southern District of New York Thursday, saying that its contracts with Viacom channels never specified anything about the kinds of devices that the programming could be streamed to within customers’ homes, that the streams to the iPads deploy the same transmission technology as is used for television programming, and that at no time is the programming ever transmitted over the public internet.

The cable company says in its court filing that the iPad is no different from its Broadband TV pilot project between 2005 and 2007 in San Diego, to which Viacom ultimately had no objections to when the technology was explained to its executives.

The company wants a declaratory judgement from the court because it plans on introducing several other kinds of devices to which its cable system can pipe its content, and it wants to remove the prospect of being hit up for more carriage fees, the filing says.

For its part, Viacom is suing Time Warner Cable for breach of contract and trademark infringement.

Viacom points to Time Warner’s use of the internet protocol as a method of transmission, and says that it doesn’t fall under traditional legal definitions of a cable service, and that Time Warner never obtained the rights to “deliver Viacom’s programming via broadband.”

Delivering the content via broadband on iPads will undermine audience measurement firm Nielsen Media Research’s ability to accurately rate television shows for advertisers, it says. That’s a problem because advertising is the main revenue source for the channels.

And Time Warner’s move will undercut Viacom’s other business relationships, say the firm’s lawyers.

“Among other things, TWC’s actions will interfere with Viacom’s opportunities to license content to third party broadband providers and to successfully distribute programming on its own broadband delivery sites,” reads Viacom’s complaint.

“Examples of authorized broadband distribution of Viacom’s entertainment programming include Apple’s iTunes Music Store, which sells secure digital downloads of television shows from several of Viacom’s television networks and streaming services such as Hulu and Netflix,” Viacom told the court in its Thursday filing. “The programming distributed through these licensed online broadband distribution channels include ‘The Daily Show with Jon Stewart,’ ‘The Colbert Report,’ and ‘South Park’ from Comedy Central; ‘Spongebob Squarepants,’ and ‘Dora the Explorer’, among others, from Nickelodeon; and ‘Beavis and Butthead’ and ‘Laguna Beach,’ among others, from MTV.”

Viacom says that the disagreement is primarily about Time Warner Cable’s unilateral actions.

“Viacom is committed to meeting consumer demand for wireless and broadband delivery of its programming,” the company says in its filing with the court. “To this end, Viacom has reached reasonable agreements with several emerging and established digital platforms so that they can stream Viacom’s content and also provide an outstanding user experience.

Viacom has made clear that it is willing to discuss extension of similar rights to others– including TWC. What Viacom cannot do, however, is permit one of its contracting partners, TWC, to unilaterally change the terms of its contractual relationship.”

Of course what is interesting is that interactive tablet devices such as the iPad and SmartTVs were not available back in 2005, 2006 and 2007.

Viacom probably didn’t have the option of streaming its content directly to consumers via broadband networks through tablet interfaces such as Apple’s iOS: So the contract agreed to at the time in San Diego, and that Time Warner Cable points to as an example of Viacom being kosher  with, may not be a good point of comparison because the technology was different at the time.

At that time, the iPad did not  exist, and Viacom did not have the option of building its channels’ brands independently of Time Warner on the Apple iOS platform.



Public Knowledge Celebrates 20 Years of Helping Congress Get a Clue on Digital Rights



Screenshot of Gigi Sohn from Public Knowledge's 20th anniversary event

February 27, 2021 – The non-profit advocacy group Public Knowledge celebrated its twentieth anniversary year in a Monday event revolving around the issues that the group has made its hallmark: Copyright, open standards and other digital rights issues.

Group Founder Gigi Sohn, now a Benton Institute for Broadband and Society senior fellow and public advocate, said that through her professional relationship with Laurie Racine, now president of Racine Strategy, that she became “appointed and anointed” to help start the interest group.

Together with David Bollier, who also had worked on public interest projects in broadcast media with Sohn, and is now director of Reinventing the Commons program at the Schumacher Center for a New Economics, the two cofounded a small and scrappy Public Knowledge that has become a non-profit powerhouse.

The secret sauce? Timing, which couldn’t have been better, said Sohn. Being given free office space at DuPont Circle at the New America Foundation by Steve Clemmons and the late Ted Halstead, then head of the foundation, was instrumental in Public Knowledge’s launch.

The cofounders met with major challenges, Sohn and others said. The nationwide tragedy of September 11, 2001, occurred weeks after its official founding. The group continued their advocacy of what was then more commonly known as “open source,” a related grandparent to the new “net neutrality” of today, she said.

In the aftermath of September 11, a bill by the late Sen. Ernest “Fritz” Hollings, D-S.C., demonstrated a bid by large copyright interest to force technology companies to effectively be the copyright police. Additional copyright maximalist measures we launched almost every month, she said.

Public Knowledge grew into something larger than was probably imagined by the three co-founders. Still, they shared setbacks and losses that accompanied their successes and wins.

“We would form alliances with anybody, which meant that sometimes we sided with internet service providers [on issues like copyright] and sometimes we were against them [on issues like telecom],” said Sohn. An ingredient in the interest group’s success was its desire to work with everyone.

Congress didn’t have a clue on digital rights

What drove the trio together was a shared view that “Congress had no vision for the future of the internet,” explained Sohn.

Much of our early work was spend explaining how digitation works to Congress, she said. The 2000s were a time of great activity and massive growth in the digital industry and lawmakers at the Hill were not acquainted well with screens, computers, and the internet. They took on the role of explaining to members of Congress what the interests of their constituents were when it came to digitization.

Public Knowledge helped popularize digital issues and by “walking [digital information] across the street to [Capitol Hill] at the time created an operational reality with digitization,” said Bollier.

Racine remarked about the influence Linux software maker Red Hat had during its 2002 initial public offering. She said the founders of Red Hat pushed open source beyond a business model and into a philosophy in ways that hadn’t been done before.

During the early days of Public Knowledge, all sorts of legacy tech was being rolled out. Apple’s iTunes, Windows XP, and the first Xbox launched. Nokia and Sony were the leaders in cellphones at the time, augmenting the rise of technology in the coming digital age.

Racine said consumers needed someone in Washington who could represent their interests amid the new software and hardware and embrace the idea of open source technologies for the future.

Also speaking at the event was Public Knowledge CEO Chris Lewis, who said Public Knowledge was at the forefront of new technology issues as it was already holding 3D printing symposiums before Congress, something totally unfamiliar at the time.

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In Google v. Oracle, Supreme Court Hears Landmark Fair Use Case on Software Copyright



Photo of Tom Goldstein from the Peabody Award used with permission

October 12, 2020 – The Supreme Court on Wednesday publicly struggled with the copyrightability of software in a uniquely contested case between Google and Oracle, the outcome of which could play a significant role in the future of software development in the United States.

The oral arguments were the culmination of a battle that started 10 years ago, when tech company Oracle accused Google of illegally copying its code. Oracle owns the copyright to the Java application programming interface that Google utilized to establish a new mobile operating system.

The company has sued Google for more than $9 billion in damages.

Yet Google claimed a “fair use” defense to its copying. Google copied less than 1 percent of the Java code. Even though the law generally treats computer programs as copyrightable, Google’s attorney before the Supreme Court, Thomas Goldstein, said that by adapting Oracle’s code to serve a different purpose, Google’s use was “transformational,” and entitled to fair use protections.

Goldstein said that this form of unlicensed copying is completely standard in software, and saves developers time and lowers barriers to innovation.

He referenced a famous Supreme Court precedent about public domain works, Baker v. Selden, which in 1880 declared that once information is published to the public, the public has a right to use it.

“Google had the right to do this,” said Goldstein.

Still, Oracle attorney Joshua Rosenkranz asserted that the Java code is an expressive work eligible for copyright protections. Rosenkranz further argued that Google’s use of the code was not transformational.

Justice Sonia Sotomayor appeared to suggest that jurors in the lower court case properly found Google’s use to be transformational because it took the APIs from a desktop environment to smartphones.

“Interfaces have been reused for decades,” said Goldstein. Google had to reuse Oracle’s code to respond to interoperability demands.

“It has always been the understanding that this purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way,” he said.

Supreme Court observers said that the high court appeared leaning toward upholding the 2016 jury verdict vindicating Google’s fair use defense.

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Fair Use is Essential But its Enforcement is Broken, Says Senate Intellectual Property Subcommittee



Screenshot of Grammy-winning recording artist Yolanda Adams from the hearing

July 28, 2020 — “Fair use” is an essential doctrine of copyright law that is unevenly applied, said participants in a Senate Intellectual Property Subcommittee hearing Tuesday.

The hearing, “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use,” saw participants discuss whether the Digital Millennium Copyright Act still permits fair uses of copyrighted content that would be otherwise infringing.

The DMCA, passed in 1998, criminalizes the manufacture, sale or other distribution of technologies designed to decrypt encoded copyrighted material. This ban on anti-circumvention tools does not appear to account for fair use.

The fair use exception to copyright law allows the republication or redistribution of copyrighted works for commentary, criticism or educational purposes without having to obtain permission from the copyright holder.

However, Joseph Gratz, partner at Durie Tangri, said that fair use often clearly applies but is not enforced, leaving users of the legally obtained content to deal with automated content censors.

“Fair use depends on context, and machines can’t consider context,” he said. “A video, for example, that incidentally captures a song playing in the background at a political rally or a protest is clearly fair use but may be detected by an automated filter.”

When an automated filter detects a song on a platform like YouTube, it redirects advertising revenue from the creator of the video to the creator of the song, often erroneously.

Rick Beato, who owns a music education YouTube channel with over one-and-a-half million subscribers, said that he does not receive ad revenue from hundreds of his videos.

“One of my recent videos called ‘The Mixolydian Mode’ was manually claimed by Sony ATV because I played ten seconds of a Beatles song on my acoustic guitar to demonstrate how the melody is derived from the scale,” he said. “This is an obvious example of fair use, I would argue.”

Grammy-winning recording artist Yolanda Adams testified that she sees the problems of fair use employment as about more than simply receiving money.

“As a gospel artist, I’m not just an entertainer,” she said. “I see my mission as using my gift to spread the gospel — so for me, fair use is not just about money. It’s about access.”

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