BMG v. Cox: ISP Liability and the Power of Inference

As readers are likely aware, the jury verdict in BMG v. Cox was handed down on December 17th. The jury found that BMG had proved by a preponderance of the evidence that Cox’s users were direct infringers and that Cox is contributorily liable for that infringement. The interesting thing, to me at least, about these […]

The Various Views of Volitional Conduct

On July 15th of this year, the Copyright Office sought “further comments on the state of U.S. law recognizing and protecting ‘making available’ and ‘communication to the public’ rights for copyright holders.” The Office had solicited similar comments this past February, and a total of twenty-seven replies were filed at the time. After the Supreme […]

On Scalia’s Aereo Dissent

Associate Justice Antonin Scalia is not happy with the Supreme Court’s holding that Aereo performs, as he makes clear in his acerbic dissent in Aereo. Scalia mocks the Court’s “test-free, ad hoc, case-by-case evaluation,” and he claims that the Court “disregard[s] widely accepted rules for service-provider liability and adopt[s] in their place an improvised standard […]

Applying Aereo: Dish’s Hopper with Sling

This is the second post in my “Applying Aereo” series. In the first post, I walked through the Supreme Court’s reasoning step-by-step. In this second installment, I’ll apply the holding of Aereo to Dish’s Hopper with Sling, and I’ll explain why I think Fox should lose on its new public performance claim against Dish. While […]