Cablevision filed suit in federal court against Verizon Tuesday, seeking a declaratory judgment to allow it to continue running an ad that "exposes Verizon's false and misleading marketing claims" about its FiOS service. "Verizon has not been truthful to the public for nearly 10 years about FiOS," said a Cablevision news release. "Verizon FiOS is not all fiber and, in fact, uses regular coaxial cable inside the home. Cablevision ran an advertisement revealing that FiOS is not all fiber, and now Verizon is demanding that Cablevision stop running its ad. Consumers deserve to make informed decisions based on facts, and Cablevision is asking the court to intervene to stop Verizon from attempting to continue to mislead the public.” Cablevision said that in some cases, Verizon had used coaxial cable outside the home as well. Cablevision's complaint in the U.S. District Court for the Southern District of New York said that Verizon had "sent a cease and desist letter to Cablevision asserting that Cablevision’s television commercial 'must be immediately stopped' and asserted that commercial was false advertising "under Section 1125(a) of the Lanham Act and other federal and state laws." Verizon then filed a challenge to Cablevision’s advertisement with the National Advertising Division of the Council of Better Business Bureaus, but Cablevision had decided voluntarily not to submit to the NAD review, the complaint said. Verizon responded that "once again Cablevision demonstrates an unhealthy appetite for confusing consumers. Cablevision cannot compete with Verizon FiOS, or even come close to providing the Internet speeds and performance available from Verizon’s 100 percent fiber-optic network. Since their network can’t compete against FiOS, they resort to legal stunts, which we will challenge vigorously."
The Center for Digital Democracy filed a cross-motion for partial summary judgment against the FTC Wednesday with the U.S. District Court for the District of Columbia, challenging the agency’s decision to “withhold certain information requested by CDD under the Freedom of Information Act (FOIA)” related to the Children’s Online Privacy Protection Act (COPPA), the court filing said. The FTC asserted on March 23 in its motion for summary judgment that the information was properly withheld under FOIA Exemptions 3 and 4, the filing said. “CDD concedes that some of the information responsive to its request may be withheld from disclosure,” but “disputes the agency’s exemption claims with respect to a substantial amount of the withheld material,” the filing said. CDD and its predecessor the Center for Media Education, were “instrumental in pushing Congress to enact COPPA in 1998” and continue to be active in the law’s implementation by the FTC, the filing said. In July 2014, CDD submitted a FOIA request for all annual reports submitted by safe harbor programs as required by COPPA including those of Aristotle International, Children’s Advertising Review Unit, Entertainment Software Rating Board, the kidSAFE Seal Program, Privacy Vaults Online and TRUSTe, it said. On Feb. 12, the FTC “produced to CDD, in heavily redacted form, the annual reports,” the filing said. Two pages weren't redacted, 33 were partially redacted and 50 pages were withheld in full, it said. The FTC filed a summary motion March 23 asserting an adequate search for responsive records occurred and asked the court to ratify the withholdings under FOIA Exemptions 3 and 4. The FTC said it withheld information from eight categories of information that are exempt from disclosure: nonpublic interpretations and analysis of the COPPA Rule, self-regulatory assessments not required by COPPA, business development plans, compliance oversight tools and logistics, membership statistics and market shares, member correspondence regarding compliance issues, remediation and disciplinary rates, and the identity of members subject to discipline. CDD disputes the FTC’s ability to withhold information on interpretation and analyses of COPPA, membership statistics and market shares, and remediation and disciplinary rates, the filing said. “CDD does not seek information that would identify any particular safe harbor member, but rather seeks only the aggregated information safe harbor programs are required to submit to the FTC annually,” the filing said. The FTC had no immediate comment.
A U.S. Court of Appeals for the D.C. Circuit panel struck Daniel Berninger's motion to stay the FCC net neutrality order that reclassified broadband Internet access as a Communications Act Title II service. The panel's order Tuesday said the court's clear intent in previous orders was for Berninger's case to be consolidated with others in a single joint motion for a stay, but Berninger, founder of Voice Communication Exchange Committee, filed his motion separate from a previous stay request of telco and cable groups. The latter motion targets only the Title II broadband reclassification and an Internet conduct standard, not the net neutrality rules against Internet blocking, throttling and paid prioritization (see 1505190033). The D.C. Circuit denied a motion by intervenors, including Public Knowledge, backing the FCC order that had sought to exceed previous page limits in a separate opposition to the stay motion. The panel did allow intervenors to file a single joint response of up to 20 pages by noon Friday, when the FCC response is due. The panel gave telco/stay petitioners until noon May 29 to file a reply of up to 28 pages. In another development, judges for the 3rd Circuit ordered that a challenge to the net neutrality order by Full Service Network, Sage Telecommunications, Telescape Communications and TruConnect Mobile be transferred to the D.C. Circuit. The FCC had requested that change.
The U.S. Court of Appeals for the 9th Circuit upheld U.S. District Judge Michael Fitzgerald’s ruling in Los Angeles against requiring Google to take off of YouTube a trailer for controversial anti-Islam video Innocence of Muslims. The 9th Circuit said Monday that the district court ruling “did not abuse its discretion” in denying actress Cindy Lee Garcia’s request for a mandatory preliminary takedown of the video. Garcia claimed in her original lawsuit, filed in 2012, that she had been tricked into briefly appearing in the video. Garcia was clearly “bamboozled” into appearing in the film, but the law and facts in the case didn’t “clearly favor” her copyright claim, the 9th Circuit said, saying the U.S. Copyright Office had refused to register Garcia’s performance separately from the Innocence of Muslims video. In the context of copyright infringement, “the only basis upon which the preliminary injunction was sought, Garcia failed to make a clear showing of irreparable harm to her interests as an author,” the 9th Circuit said. The circuit court’s en banc ruling Monday reversed a 2014 three-judge ruling by the circuit court that ordered the video’s takedown despite finding that Garcia’s copyright claim on the video was “doubtful" (see report in the March 3, 2014, issue). Neither Garcia nor Google immediately commented on the ruling. Multiple public interest groups that had criticized the 9th Circuit’s original ruling in the case praised the en banc reversal. The en banc ruling “is a victory for free speech and the First Amendment,” said Public Knowledge Policy Counsel Raza Panjwani in a statement. “In the case of controversial expression, like the trailer for Innocence of Muslims, copyright law should not trump the public’s right to discuss, criticize, or comment or report on that expression.”
The Electronic Frontier Foundation said Thursday that it filed a friend of the court brief with the U.S. Court of Appeals for the 11th Circuit Wednesday urging that court to “consider the First Amendment interests at play when copyright is used to silence public criticism” as it considers Katz v. Chevaldina, a case in which Miami Heat minority owner Raanan Katz sued blogger Irina Chevaldina for copyright infringement. Katz had obtained a copyright on what he considered an unflattering photo that Chevaldina used in a blog post critical of Katz’s business practices in order to force the photo’s removal, EFF said. Katz had also sued Google for not complying with a takedown notice related to the photo but later dropped the search engine company from the lawsuit, EFF said. The 11th Circuit is considering Katz’s appeal of the case from the U.S. District Court in Miami, where Magistrate Judge Chris McAliley ruled that Chevaldina’s use of the photo is protected as a fair use. EFF said in a blog post that it’s asking the 11th Circuit to affirm McAliley’s fair use ruling and to “carefully consider the fact that Katz is using copyright as a tool for censorship.” Abuse of copyright “can affect not only an individual speaker’s right to speak, but also the public’s right to receive information,” EFF said. “This impact on free speech should inform courts’ fair use analysis. And a correct ruling in favor of fair use here should help deter misuse of copyright law in the future.”
Law enforcement shouldn't have been able to search or seize Adam Bradley’s telephone records without first obtaining a warrant, Jason Estabrook’s lawyer George Murphy argued Thursday before the Massachusetts Supreme Court. Estabrook was charged with first-degree murder and allegedly was in possession of Bradley’s cellphone before and after the murder. Arguing on behalf of the commonwealth, Jamie Michael Charles said that in order to have a reasonable expectation of privacy, an individual must show interest in the phone. Charles said that since law enforcement knew the time of the murder, it searched a six-hour time frame of Bradley’s phone around the time of the murder, a search that didn't require a warrant. Defendants constantly talk in advance to plan crimes and after to sync alibis and how to get rid of evidence, Charles said. Probable cause wasn't needed because there's no reasonable expectation of privacy in a short-time frame because it doesn’t show patterns such as whether an individual visits a mosque once a week or is cheating on a spouse, Charles said. Murphy said there's no evidence Bradley had his phone on his person. Bradley attorney Daniel Beck said that law enforcement illegally obtained information in order to obtain a statement from his client. The American Civil Liberties Union and Electronic Frontier Foundation have written amicus briefs on the Estabrook v. Commonwealth case, asking the Massachusetts Supreme Judicial Court to close what they see as a loophole in the state’s warrant requirements for cellphones, which let law enforcement collect cell-site location information for a period of six hours or less without a warrant (see 1504270048).
ESPN filed a breach of contract complaint against Verizon in New York State Civil Court Monday over its offering of "skinny bundles" that don’t include all of ESPN’s offerings. ESPN wants the court to enjoin Verizon from offering the bundles and seeks damages, the complaint said. “Consumers have spoken loud and clear that they want choice, and the industry should be focused on giving consumers what they want,” responded a Verizon spokesman via email: “We are well within our rights under our agreements to offer our customers these choices.” "ESPN is at the forefront of embracing innovative ways to deliver high-quality content and value to consumers on multiple platforms, but that must be done in compliance with our agreements," ESPN said. "We simply ask that Verizon abide by the terms of our contracts.” The American Cable Association issued a news release in support of Verizon Monday. “Verizon deserves credit for putting this programming cost issue in the national spotlight by offering a small-sized service that programmers say their contracts do not permit,” ACA said. “Responses by the large programmers to the Verizon’s Custom TV plan only underscore what everyone already knew -- programming contracts prohibit cable operators from giving their customers more of the choice that they want.”
Aereo reached a $950,000 bankruptcy settlement with the broadcasters whose TV signals Aereo appropriated for its streaming TV service, a motion filed in U.S. Bankruptcy Court in New York said. The broadcasters, which include ABC, CBS, Univision, WNET and numerous others, had sought $99 million in damages for copyright infringement and attorney’s fees after winning a decision over Aereo in the U.S. Supreme Court last year. In March, Aereo filed a complaint arguing that through a “tortious conspiracy,” broadcasters had kept its assets from selling for their real value (see 1503100073). Aereo’s patents were sold to RPX Corp., a company specializing in defensive patent acquisitions, for $225,000; its trademarks and customer lists to TiVo for $1 million; and portions of its equipment to Alliance Technology Solutions for $320,000, according to court documents. Under the settlement, the broadcasters' claims will be satisfied with Aereo’s payment of the $950,000, Aereo will drop its conspiracy complaint, and all outstanding court proceedings in other jurisdictions will be resolved, the motion said.
In response to a StubHub lawsuit alleging the Golden State Warriors’ front office and Ticketmaster engage in unfair and illegal anticompetitive business practices (see 1504100008), a spokeswoman for the NBA Warriors said the organization doesn't comment specifically on pending legal matters but wanted fans to know that “the Warriors are committed to providing fans with the opportunity to see our games in person through a safe and secure ticket buying experience.” Fans are denied entry at each game because they bought counterfeit tickets, the spokeswoman said. “Warriors.com and NBATickets.com are the only sites where tickets are guaranteed to be authentic,” she said. “Third party sites may offer a ‘money back’ guarantee,” but none “can verify ticket authenticity that would guarantee entry to our games,” the spokeswoman said. The Warriors decided not to renew 2015-2016 season tickets by some ticket brokers in order to sell those tickets to the more than 10,500 fans waiting to purchase season tickets, she said.
StubHub sued Ticketmaster and the Golden State Warriors’ front office, StubHub parent eBay said in a news release Thursday. StubHub said it hopes to “stop unfair and illegal anti-competitive business practices” with the lawsuit, and to ensure fans are the ones who decide how to resell tickets and that Ticketmaster’s monopoly that has led to higher ticket prices comes to an end. “Ticketmaster and the Warriors’ front office violated federal antitrust law and California state law against unfair competition by cancelling fans’ regular-season and playoff-game tickets when those fans chose to use StubHub and other exchanges to resell their tickets,” the release said. “StubHub will continue to fight for an open and fair ticket market for fans.” StubHub asked those who “have been threatened with revocation of your season tickets” to contact the company. Ticketmaster parent company Live Nation and the Golden Warriors had no immediate comment.