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Internet Prior Art; Related Circuit Split

In what can be characterized as a case of first impression, the Federal Circuit has concluded that a “printed publication” under 35 U.S.C. 102(b) includes an article distributed online via a subscription mailing list, made available for FTP download, and available on the web. In Voter Verified, Inc. v. Premier Elections Solutions, Inc., The court concluded that the article qualified as prior art even though there was no evidence that it had been indexed by any commercial Internet search engine before the critical date. The Federal Circuit rejected Voter Verified’s suggestion that a web-based reference  must be “searchable by pertinent terms over the internet” to qualify as a prior art “printed publication” as defined by 35 U.S.C. § 102(b). (Slip op. at 7-8.)

Voter Verified  also deepened a existing split between the circuits: The Federal Circuit has now joined the Tenth Circuit in using “internet” rather than “Internet.” See U.S. v. Perrine, 518 F.3d 1196 (10th Cir. 2008). Other circuits—including the Second and Seventh Circuits—disagree on this question, and capitalize “Internet.” E.g., Tamburo v. Dworkin, 601 F.3d 693 (7th Cir. 2010); Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2nd Cir. 2009).

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Second Circuit rules that a TV-streaming company does not qualify as a “cable system” under the Copyright Act

Yesterday in WPIX v. ivi, the Second Circuit affirmed a preliminary injunction against ivi, Inc. and its CEO, prohibiting them from re-transmitting copyrighted cable TV programs.

ivi itself began the litigation. After receiving cease-and-desist letters, ivi filed suit in federal court in the Western District of Washington seeking declaratory relief. A week later, WPIX filed suit in New York; the Washington action was dismissed. ivi, Inc. v. Fisher Commc’ns, Inc., No. C10-1512JLR, 2011 WL 197419 (W.D. Wash. Jan. 19, 2011).

ivi’s defense relied almost entirely on § 111 of the Copyright Act. That section is an exception to the traditional rule that a copyright owner has exclusive broadcast rights. Section 111 permits a “cable system” to publicly transmit signals of copyrighted television programming to its subscribers, provided they pay royalties at government-regulated rates and abide by the statute’s procedures. ivi lost at the district court—which issued the injunction—and appealed. Read the rest of this entry

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