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Week in Review

Martha Nimmer

Embracing the Evil

According to a panel of trademark judges in the nation's capital, "there is only one Evil Empire in baseball and it is the New York Yankees." Now, this may sound like bad news for the Bronx Bombers, but actually, it is quite the opposite: the statement came from the court in response to a request earlier this month from a private entrepreneur, known as Evil Enterprises, Inc., to register the trademark for the phrase "Baseballs [sic] Evil Empire." The Yankees objected to the registration, arguing that the team possessed the exclusive rights to the phrase in connection with baseball. The court agreed, stating "allowing anyone else to use the phrase exclusively would likely cause confusion."

Evil Enterprises initially applied for trademark registration of the "evil empire" phrase in 2008. According to The Wall Street Journal, the term was "coined in regard to the Yankees by Larry Lucchino, the president and chief executive of the Boston Red Sox, back in 2002." Lucchino referred to the Yankees as the "evil empire" upon learning that the team had acquired sought-after Cuban pitcher Jose Contreras. Unfazed by the
Red Sox, the Yankees embraced the evil empire label, even playing music from "Star Wars" during their home games.

Lawyers for Evil Enterprises are unsure if they will appeal the panel's ruling.


The Great Intern Revolt of 2013

In what is sure to send chills throughout the boardrooms of corporate America, summer 2013 may be the last hurrah for unpaid intern labor. As it turns out, people -- yes, even students -- like to be paid for their work, which is what led two former interns for Fox Entertainment Group to sue Fox Searchlight in September 2011. The former interns, who worked on the hit movie "Black Swan", claim that the company's unpaid production internship program runs afoul of minimum wage and overtime laws. Broadly, the plaintiffs argue that the interns performed work for the film company that displaced paid employees; that Fox financed, closely monitored and set employment conditions on productions like Black Swan; and that the internship program didn't qualify as a bona fide training program under the Labor Department's "Six Factor Test." The suit against Fox Searchlight was later expanded to cover Fox's entire internship program. An amended complaint in the suit lists damages of at least $5 million.

Fearing an unfavorable ruling, Fox has filed numerous court papers, the latest one being a motion for summary judgment. Fox has also filed a motion to strike the class claims, in essence arguing that the typicality requirement for class action certification is not satisfied: "[f]our named Plaintiffs seek to certify five different classes of student interns, some of whom may have interned on any one of 27 movie productions (putative Production Interns) or may have interned at any of over 500 corporate offices nationwide (putative Corporate Interns). Plaintiffs make dozens of wage and hour claims under a host of state and federal laws against Defendants Fox Searchlight Pictures, Inc. and its parent company Fox Entertainment Group, Inc., neither of whom employed much of the putative class." To prevail in its motion to strike, Fox must convince the court that Fox was not a "joint employer," that the company's role was limited in organizing production internships, and that it is not feasible, or desirable, to adjudicate the array of claims made by individuals with unique and varied internship experiences with Fox.


Read the plaintiffs' motion for summary judgment here: http://www.scribd.com/doc/126600276/Interns-Summary

Read Fox's motion for summary judgment here: http://www.scribd.com/doc/126599952/Interns-Dismissal

Six Strikes, You're Out

After years of planning, five major Internet Service Providers (ISPs) have finally launched the much anticipated and debated "Copyright Alert System." The goal of the program is to educate Internet users about content theft and decrease incidents of copyright infringement. The five ISPs are Verizon, AT&T, Comcast, Cablevision and Time Warner.

Under the Copyright Alert System, also dubbed the "Six Strike Policy" because of its graduated penalty system, content owners monitor P2P sites and look for material that has been uploaded without permission. Notices detailing the illicit uploads are then sent to the ISPs, which in turn send warnings to their users. The first warning, or "alert," sent to a user is used to notify an ISP subscriber that a customer has "made content available illegally through their connection." Subsequent alerts become more serious, and the consequences riskier.

Each ISP participating in the Copyright Alert System has its own mitigation measures, writes The Hollywood Reporter. AT&T, for example, plans to require repeatedly-targeted customers to complete an "online education tutorial on copyright." AT&T also reserves the right to cut off access to certain websites, and, after the fifth alert, share the offending customer's personal information with the content owner if it wishes to pursue legal action.

Unsurprisingly, the new system has its critics. Privacy advocates have denounced ISPs' plans to share user information with content owners. Small business owners who provide open WiFi access to customers, such as cafes and bookstores, also worry about the impact of the Copyright Alert System on the businesses' ability to use and provider Internet access. Even more concerned are the ISP customers, who want to know how they will be able to appeal an alert or a strike lodged against them. According to The Hollywood Reporter, The Center for Copyright Information, in collaboration with ISPs, suggests a review process handled by the American Arbitration Association as a way to allow customers to appeal strikes. Users who contest strikes will have to pay $35 for a review, although the fee is waived if financial hardship can be shown; refunds are given when appeals are successful.

Whether this program has any notable effect on clamping down on Internet piracy remains to be seen.


Fox and Dish

Fox just won't quit: last week, Fox Television filed an amended lawsuit and a new injunction in a California federal court, targeting Dish's Hopper with Sling, also known as "Dish Anywhere." Last July, a federal judge denied Fox's first motion for a preliminary injunction, ruling that that "copies made within Dish's system as an "intermediate" step to a user's time-shifting" qualified as fair use, and did not pose the threat of irreparable harm.

Dish's Hopper service was introduced in January, and received "widespread attention when CBS prohibited its CNET subsidiary from awarding a Best of Show prize." The Consumer Electronics Association eventually overruled CBS' decision, and awarded the product the prize. Fox, however, remains unimpressed. "Paying Dish for a satellite television subscription does not buy anyone the right to receive Fox's live broadcast signal over the Internet or to make copies of Fox programs to watch 'on the go,' because Dish does not have the right to offer these services to its subscribers in the first place," writes Fox in a memorandum in support of its preliminary injunction motion.

A Dish spokesperson responded to the lawsuit, saying, "[w]ith its latest motion, Fox continues its war against how Americans watch TV. Dish has long argued consumers have the right to privately watch shows anywhere, anytime, and it looks forward to continuing its fight on behalf of customer choice and control."

So, in the meantime, it looks like TV watchers are stuck with the tyranny of commercials...


Read Fox's preliminary injunction memo here: http://www.scribd.com/doc/126786202/Fox-Injunction-Motion

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This page contains a single entry from the blog posted on March 3, 2013 3:37 PM.

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