INSIGHTS & ISSUES IN INTELLECTUAL PROPERTY, ENTERTAINMENT, AND BUSINESS LAW.
Monday, August 25, 2008
Saturday, August 23, 2008
FCC APPROVES XM-SIRIUS SATELLITE RADIO MERGER UNITING 18.5 MILLION SUBSCRIBERS; FOLLOW-UP TO JUNE 30TH XM-SIRIUS ARTICLE
On July 25, 2008, the Federal Communications Commission, after a 16-month review, announced its approval of the XM-SIRIUS satellite radio merger. FCC approval provides the green-light for the merger as the FCC is the top communications regulator.
FCC commissioner Deborah Taylor Tate cast the deciding vote in a 3-2 decision, after the two companies agreed to a $19 million "consent decree" agreement in late June, which addressed prior dealings that created anti-trust issues.
From the outset, competitors and critics have challenged the merger as a violation of federal anti-trust laws.
One particular issue addressed in the FCC's consent decree is the use of "terrestrial repeaters," which both companies conceded were put in unauthorized locations. The violation is of note.
As John Eggerton reported for Broadcasting & Cable on July 24, 2008, the FCC launched a 2006 investigation in to the repeaters and radios [used by the two companies], which included FM transmitters that did not comply with FCC rules.
In addition, as former FCC chief of staff, Blair Levon, points out in a July 25, 2008, BusinessWeek article, "The biggest question mark is how this product thrives in an era of difficult financing and where people have alternative means of getting radio..."
No doubt, profitability is a critical issue for XM and SIRIUS, as the two companies have racked-up years of heavy losses on the way to the current merger. In short, it has been a long road for investors, and it seems patience may be running out.
The news of the XM-SIRIUS merger has done little to slow company losses. In fact, as BusinessWeek reports, since the deal was announced in February 2007, SIRIUS shares have plunged 43%, to 2.25 as of July 25, 2008, while XM stock has tumbled 40%, to 9.28.
Here is the BusinessWeek article referenced above (FCC Approves the XM-Sirius Merger) and the B & C article referenced above (FCC Approves XM-Sirius Merger), for more.
FCC commissioner Deborah Taylor Tate cast the deciding vote in a 3-2 decision, after the two companies agreed to a $19 million "consent decree" agreement in late June, which addressed prior dealings that created anti-trust issues.
From the outset, competitors and critics have challenged the merger as a violation of federal anti-trust laws.
One particular issue addressed in the FCC's consent decree is the use of "terrestrial repeaters," which both companies conceded were put in unauthorized locations. The violation is of note.
As John Eggerton reported for Broadcasting & Cable on July 24, 2008, the FCC launched a 2006 investigation in to the repeaters and radios [used by the two companies], which included FM transmitters that did not comply with FCC rules.
In addition, as former FCC chief of staff, Blair Levon, points out in a July 25, 2008, BusinessWeek article, "The biggest question mark is how this product thrives in an era of difficult financing and where people have alternative means of getting radio..."
No doubt, profitability is a critical issue for XM and SIRIUS, as the two companies have racked-up years of heavy losses on the way to the current merger. In short, it has been a long road for investors, and it seems patience may be running out.
The news of the XM-SIRIUS merger has done little to slow company losses. In fact, as BusinessWeek reports, since the deal was announced in February 2007, SIRIUS shares have plunged 43%, to 2.25 as of July 25, 2008, while XM stock has tumbled 40%, to 9.28.
Here is the BusinessWeek article referenced above (FCC Approves the XM-Sirius Merger) and the B & C article referenced above (FCC Approves XM-Sirius Merger), for more.
Sunday, August 10, 2008
SECOND CIRCUIT COURT OF APPEALS RULES CABLEVISION'S DVR SYSTEM DOES NOT INFRINGE ON COPYRIGHT PROTECTIONS OF MOVIE STUDIOS AND TELEVISION PRODUCERS
On August 4, 2008, the US Second Circuit Court of Appeals, in a unanimous decision, reversed a federal district court's 2007 ruling, which held that Cablevision's DVR system constituted an illegal rebroadcast of copyrighted content owned by television and movie production companies. (Second Circuit Cablevision Opinion).
As Cablevision Chief Operating Officer Tom Rutledge suggests, this is a hugely-important ruling for Cablevision's DVR service and other prodigy services, "It couldn't be a bigger or more complete win... all aspects of the case were decided our way," Rutledge said to USAToday.
Cablevision's exuberance, however, may be short-lived. The ruling will almost certainly be appealed. In addition, many observers believe the Second Circuit Court of Appeals got this one wrong.
Central to the controversy is the "ad skipping" ability of the DVR system, which, of course, undermines a central principle of viability for Hollywood studios and TV networks.
Time Warner's Turner Broadcasting is leading the charge for Hollywood studios and TV networks. Time Warner and Turner Broadcasting will now need to re-tool its strategy, in its attempt to shut-down the growing use of DVR systems in America's TV-savvy homes.
Here is USAToday's article referenced above (Cablevision wins in ruling on remote-storage DVR), and an opinion on the decision from the LATimes blog (The Cablevision DVR ruling | Bit Player | Los Angeles Times).
As Cablevision Chief Operating Officer Tom Rutledge suggests, this is a hugely-important ruling for Cablevision's DVR service and other prodigy services, "It couldn't be a bigger or more complete win... all aspects of the case were decided our way," Rutledge said to USAToday.
Cablevision's exuberance, however, may be short-lived. The ruling will almost certainly be appealed. In addition, many observers believe the Second Circuit Court of Appeals got this one wrong.
Central to the controversy is the "ad skipping" ability of the DVR system, which, of course, undermines a central principle of viability for Hollywood studios and TV networks.
Time Warner's Turner Broadcasting is leading the charge for Hollywood studios and TV networks. Time Warner and Turner Broadcasting will now need to re-tool its strategy, in its attempt to shut-down the growing use of DVR systems in America's TV-savvy homes.
Here is USAToday's article referenced above (Cablevision wins in ruling on remote-storage DVR), and an opinion on the decision from the LATimes blog (The Cablevision DVR ruling | Bit Player | Los Angeles Times).
Saturday, August 9, 2008
CALIFORNIA SUPREME COURT UPHOLDS STATE'S STRICT BAN ON NON-COMPETITION AGREEMENTS FOR EXITING EMPLOYEES
On August 7, 2008, the California Supreme Court struck-down previous appellate court rulings that would allow employers to require departing employees to sign non-competition agreements as long as the non-competition agreements were narrowly-tailored.
On balance, the California Supreme Court focused on the harshness of non-competition agreements and the competing interest of company trade secrets. The case is Edwards vs. Arthur Andersen.
Edwards, as plaintiff, argued that he was illegally prevented from pursuing his profession as an accountant and tax manager, via a non-competition agreement with Arthur Andersen, after the 2002 Enron/Arthur Andersen collapse.
The California Supreme Court agreed with Edwards. The non-competition agreement was an illegal restriction on Edward's right to work. In short, the non-competition agreement was illegal under a long-line of California employment law history.
As CNET reports, the decision follows precedent, for the most part. "The California law has been in existence since 1872, forbidding "non-compete clauses" that restrict management employees' options in their next job or business."
"But the law has been interpreted differently throughout the state, and the 9th U.S. Circuit Court of Appeals in San Francisco has ruled in favor of allowing a company to limit their employees' future job choices, as long as it doesn't prevent them from working in the same field."
Now the California Supreme Court has weighed-in. The Court's ruling demonstrates California's overall adversity to non-competition agreements.
The ruling is particularly good news for those in the computer, internet, and digital-media industries, as these sectors of California business have high-mobility and a fueled employee interest in moving to the next opportunity or idea.
As reported, these sectors of the industry have watched the Edwards case closely.
On balance, the California Supreme Court focused on the harshness of non-competition agreements and the competing interest of company trade secrets. The case is Edwards vs. Arthur Andersen.
Edwards, as plaintiff, argued that he was illegally prevented from pursuing his profession as an accountant and tax manager, via a non-competition agreement with Arthur Andersen, after the 2002 Enron/Arthur Andersen collapse.
The California Supreme Court agreed with Edwards. The non-competition agreement was an illegal restriction on Edward's right to work. In short, the non-competition agreement was illegal under a long-line of California employment law history.
As CNET reports, the decision follows precedent, for the most part. "The California law has been in existence since 1872, forbidding "non-compete clauses" that restrict management employees' options in their next job or business."
"But the law has been interpreted differently throughout the state, and the 9th U.S. Circuit Court of Appeals in San Francisco has ruled in favor of allowing a company to limit their employees' future job choices, as long as it doesn't prevent them from working in the same field."
Now the California Supreme Court has weighed-in. The Court's ruling demonstrates California's overall adversity to non-competition agreements.
The ruling is particularly good news for those in the computer, internet, and digital-media industries, as these sectors of California business have high-mobility and a fueled employee interest in moving to the next opportunity or idea.
As reported, these sectors of the industry have watched the Edwards case closely.
Tuesday, August 5, 2008
SUPREME COURT'S 2006 eBAY "IRREPARABLE HARM" PATENT RULING NOW PLAYS OUT IN IMPORTANT APPELLATE COURT TRADEMARK AND COPYRIGHT CASES
Since the Supreme Court's 2006 eBay v. Merc Exchange decision, the question has been whether the presumption of "irreparable harm" is available to plaintiffs when considering injunctive relief in copyright and trademark cases.
No doubt, this is an important question for intellectual property litigators. The answer may also be, on the short-side, a few years away. [ARTICLE IN A MOMENT]
No doubt, this is an important question for intellectual property litigators. The answer may also be, on the short-side, a few years away. [ARTICLE IN A MOMENT]