Digital TV Streamer Asks Court to Dismiss Broadcast Networks Copyright Suit

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In a 31-page motion for summary judgment, digital tv streaming service Aereo has asked United States District Court for the Southern District of New York Judge Alison Nathan to dismiss copyright infringement claims brought by commercial public broadcasters. 

In American Broadcasting Cos. et al v. Aereo (Case No. 1:12-cv-01540), Aereo, which is financially backed by media mogul Barry Diller (see "TUOL" post 8/14/12), argues the March 2012, copyright infringement suit brought by commercial broadcasters CBS, ABC, NBC and Fox should be dismissed following the networks' failure to persuade the United States Court of Appeals for the Second Circuit to overturn Judge Nathan's earlier ruling not to issue a permanent injunction against Aereo for allegedly violating the broadcasters' right to public performance of its programming by not securing a license from the networks.

Aereo, which digitally streams broadcasters' programming over the Internet one-on-one to subscribers' computers and Web-enabled devices, contends its transmission to individuals' miniature antennae is nonpublic and in any case, protected by the fair use defense to copyright infringement, as reported by BloombergBusinessWeek(www.businessweek.com) and the Hollywood Reporter's legal blog THR, Esq. The networks counter that Aereo capturing their over-the-air signals and transmitting its programming constitutes a public performance that infringes on their copyrights.

Cooked Peacock: NBC Sinks to 5th in Key Viewer Group

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For the first time since tv ratings sweeps history, NBC sank to fifth place among viewers in the 18- to 49-year-old demographic group that advertisers crave, Deadline Hollywood (www.Deadline.com) reported.

 NBC "second season" shows such as 1600 Penn and Do No Harm landed with a thud in their debuts (the latter has since been cancelled for doing so much harm) and rival network CBS got a massive ratings boost from the Super Bowl, but that doesn't lessen the blow of finishing behind the fourth-place Spanish-speaking network, Univision.

Watch for some tweaking in the Peacock Network's ad campaign: "More viewers are watching NBC than the Emergency Broadcast Signal!"

'Big Brother' Watching People Living in Glass Houses

Fred Allen

CBS is engaged in saber-rattling with rival network, ABC, threatening litigation over a reality show debuting next month that the folks at Black Rock claim apes one of their popular programs.

CBS, which airs Big Brother, has its Eye, so to speak, on Glass House, which is set to debut next month on ABC. The New York Times reports that CBS sent ABC a lawyer letter complaining that Glass House is "substantially and strikingly" similar to Big Brother. Glass House involves 14 people vying for a cash prize by being the last person standing after spending the summer sharing a home together under the scrutiny of television cameras. Meanwhile, Big Brother, which is set to air its 14th season this summer, involves people living together for three months in a privacy-free zone, cut off from the outside world, but under constant television camera surveillance.  That's entertainment.

In its letter to ABC that hints at litigation, CBS notes that Glass House allegedly employs 18 former Big Brother staffers, according to the Times article.  CBS previously unsuccessfully sued ABC after the latter premiered a reality show entitled I'm a Celebrity--Get Me Out of Here, that CBS alleged infringed on the granddaddy of reality television shows, Survivor.

Radio comic Fred Allen's words: "Imitation is the sincerest form of television," never seemed truer.

Third Circuit Court of Appeals Still Unmoved by Janet Jackson's Breasts

Image via WikipediaThe United States Court of Appeals for the Third Circuit yesterday upheld its 2008 ruling that the Federal Communications Commission acted "arbitrarily and capriciously" when it fined CBS Corp. $550,000 for airing the 2004 Super Bowl XXXVIII halftime wardrobe malfunction that caused Justin Timberlake to bare Janet Jackson's breast for an entire nine-sixteenths of a second (see "TUOL" post 9/17/09).

As reported by the Associated Press, the same 3rd Circuit panel that backed CBS in 2008 again found the FCC improperly penalized CBS in CBS Corp. et al v. FCC (Case No. 06-3575) in a majority opinion written by Judge Marjorie Rendell that responded to a Petition for Review of FCC Orders Nos. 06-19 & 06-68. The U.S. Supreme Court in 2010 ordered the appellate court to review its 2008 ruling based on a 2009 case involving Fox Television in which the High Court said the utterance of a single expletive on live TV could warrant an FCC fine.

Still, the 3rd Circuit was unwilling to support the actions of the FCC--much as the bustier of the now 45-year-old Jackson was unable to support her nipple-shielded breast.

Paparazzo Ambushes CBS With Copyright Infringement Suit

Image via WikipediaPaparazzi, the relentless photographers staking out celebrities, may be lawless in the public's mind, but that doesn't mean they can't also be litigious.

Witness Alan Zanger, as in Zanger v. CBS Corporation et al. (Case No. 1: 2011-cv-07483), who this week brought a copyright infringement action in the U.S. District Court for the Southern District of New York alleging that CBS's The Early Show and The Insider featured his mother & child pics of Rielle Hunter, former Sen. John Edwards' mistress without his permission.

Zanger allegedly has an exclusive deal with tabloid New York Post since 2008 to publish candids of Edwards' & Hunter's kid, which US Weekly and Inside Edition have also licensed, according to a THR, Esq. blog post. Based on interest purportedly expressed by The Insider, Zanger claims that he forwarded a couple of Hunter photos to the CBS program for its review, which his complaint alleges have appeared on the Eye Network without his being compensated.

CBS has yet to respond to the suit that was filed October 21.

Extra!: National Enquirer Pitches Reality Series to CBS

Image via WikipediaAmerican Media, Inc.-owned supermarket tabloid The National Enquirer is working with CBS to develop a reality tv series involving the daring exploits of Enquirer reporters as they uncover, or create--depending on one's perspective--scandalous news stories.

The New York Post reports today that CBS veteran Has Gessner is producing the pilot series, Breaking It: Behind the Scenes at the National Enquirer, featuring Enquirer Executive Editor Barry Levine. Reportedly, one of the teaser items in the reel pitching the series includes 2008 footage of a secret liaison at a hotel involving Rielle Hunter and America's current favorite sleazeball du jour, former Sen. John Edwards.

"TUOL" is intrigued. National Enquirer and "reality" rarely appear in the same sentence. A caveat to the suits at Black Rock contemplating airing a series celebrating Enquirer snoops on the network where Murrow & Cronkite once roamed: If you 'Breaking It,' you bought it.

The Talk Is Cheap?

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The news no one has been waiting for has been released: CBS's daytime gabfest debuting this fall now has a title: The Talk.

The program will address issues of interest to women and mothers, including those that affect their personal lives. The show will be hosted by Big Brother host Julie Chen, whose star at the Black Rock network continues to shine, for no reason in any way linked to the fact that her husband, Les Moonves, is CEO of CBS, apparently.

The Talk? The View? More like The Nauseous.

CNN & CBS Marriage in the Works?

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Building viewership and slashing costs are motivating reported news partnership conversations between CBS News and CNN.

Neither CBS nor Time Warner have acknowledged the rumored negotiations, which could result in a boon for both networks. Were a joint operation to be realized, CBS would have a cable outlet to match rival NBC's cable counterpart MSNBC, while CNN could draw on Black Rock's stable of news stars, such as Katie Couric, to combat Fox News and MSNBC, both of which are eating CNN's lunch in the ratings war at present.

Reportedly, even if CNN and CBS combine operations, the Eye Network's "60 Minutes" would be exempt, though the Sunday night powerhouse has made correspondent overtures to CNN's Anderson Cooper in the past.  "TUOL" is undecided about whether a CNN/CBS marriage would result in a journalism upgrade, but it would offer a golden opportunity to perform Carbon 14 testing on Larry King and Andy Rooney.  

Super Bowl Ad Rates Thrown for a Loss

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Though still the priciest buy on tv at $2.5 million to $2.8 million for a 30-second ad, the Super Bowl, which airs Feb. 7 on CBS, has been victimized by the nation's faltering economy.

According to TNS Media Intelligence, the ad rates commanded by CBS this year fall short of the $3 million price tag for a 30-second spot that NBC netted when it broadcast the NFL championship game last year. Still, only 4 of 62 commercial slots remain unsold as of last week, though long-time advertisers, such as Pepsi and General Motors, took a pass on this year's broadcast, which is expected to attract 100 million viewers.

Traditionally, Super Bowl commercials often generate more excitement than the game itself, and enjoy a longer shelf life, courtesy of YouTube and other Web sites. Each year, roughly a quarter of the Super Bowl advertisers are new, according to TNS. Not counting pregame and postgame commercials, the 2009 Super Bowl generated $213 million in advertising revenue, TNS said.

The hard-working staff of "TUOL" always capitalizes on Super Bowl Sunday by dining out at near-empty restaurants and pondering when pitchers and catchers report to Spring Training.  Nevertheless, "TUOL" promises there will be hell to pay unless at least one high-priced commercial features chimpanzees.

UPDATE: Court to Dan Rather: 'Courage-Your CBS Lawsuit Is Toast'

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The appellate division of the New York Supreme Court has tossed 75-year-old former anchor Dan Rather's $70 million lawsuit against CBS Corp and others. arising from Rather's participation in a  controveresial, ill-fated "60 Minutes II" story about former President George W. Bush's National Guard service.

In a unanimous seven-page decision written by Judge James Catterson, the appellate division held that Supreme Court Judge Ira Gammerman wrongly denied the defendants' motion to dismiss the breach of contract and breach of fiduciary duty claims in Rather's Complaint (Dan Rather v. CBS Corp., Viacom, Inc., et al., Case No. 603121/07). Rather sued in  Sept. 2007, alleging fraud, and breach of the covenant of good faith and fair dealing, along with the contract and fiduciary duty counts.  In July, Judge Gammerman restored the fraud count he had previously dismissed in September 2008 (see "TUOL" 7/22/09).

Writing for the Court, Judge Catterson concluded that CBS did not owe Rather a fiduciary duty and had not breached his contract by warehousing him after the error-laden Bush story ran, because Rather continued to be paid by CBS. Likewise, the Court ruled that Rather failed to prove fraud or that CBS had hindered his future business opportunities in its treatment of him.

Rather's counsel said Rather, who now works at HDNet, would appeal the ruling. A complete victory for the denizens of Black Rock.  As Rather's late colleague Walter Cronkite was wont to say: "That's the way it is."

End in Sight for Wardrobe Malfunction Saga

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The U.S. Circuit Court of Appeals for the Third Circuit last week heard arguments in the two-and-a-half-year-old titanic struggle between the FCC and CBS, Corp. over the broadcast of  Janet Jackson's bare breast for nine-sixteenths of a second during the halftime show of Super Bowl XXXVIII in 2004.

In May 2009, the U.S. Supreme Court granted the FCC's petition for writ of certiorari and vacated the judgment in favor of CBS, remanding the case to the Third Circuit for further review based on the High Court's ruling  in FCC v. Fox Television Stations (Case No. 07-582; 556 U.S. __ (2009)).

CBS initially was fined $550,000 by the FCC for broadcasting the "indecent" exposure of Jackson's breast during her performance of "Rock Your Body" with Justin Timberlake in violation of 18 U.S.C. sec.1464 and 47 C.F.R. sec. 73.39999. CBS prevailed in its appeal to the Third Circuit, which vacated the FCC orders, finding that the agency "acted arbitrarily and capriciously" in violation of the Administrative Procedure Act  5 U.S.C. sec. 706. The appeals court was unpersuaded by the FCC's claim that CBS was vicariously liable for the performers' conduct (CBS v. FCC, Case No. 06-3575). CBS had a five-second audio delay in place to repel profanity but no corresponding safeguard against naughty video images.

In the sequel before the Third Circuit last week, the FCC argued that CBS was vicariously liable for not having preventative measures in place to shield against a foreseeable flashing by Jackson. For its part, CBS countered that it had no prior knowledge that Jackson would take her boob tube appearance literally, and had implemented measures that any reasonable broadcaster could have taken to guard against such an unpredictable occurrence.

Five years after the 90 million viewers who watched the Halftime Show caught a split-second glimpse of Janet Jackson's breast, the FCC has stayed firm and its interest in the matter has held up, which is more than can be said for Janet Jackson's breasts.

Bad Day at Black Rock

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New York Supreme Court Judge Ira Gammerman yesterday breathed new life into former CBS anchor Dan Rather's $70 million lawsuit against CBS and Viacom.

Judge Gammerman restored the fraud claim in Rather's complaint that he previously tossed in September 2008, on the basis that the 75-year-old Rather could not prove damages arising from the defendants' conduct. Additionally, Gammerman ordered the defendants to turn over more than 3,000 documents to Rather's attorney as part of discovery.

Rather's counsel believe the documents may reveal evidence of efforts by CBS to influence the panel that investigated a controversial "60 Minutes" report about former President George W. Bush's Air National Guard record, which led to Rather's dismissal. Defense counsel unsuccessfully argued attorney-client privilege in attempting to avoid turning over documents, including Emails between the investigating panel and the law firm of K & L Gates that performed investigatory work for panel members.

Rather sued in September 2007, alleging his reputation and career were damaged by the panel's unfavorable report, which Rather said was biased. Former Attorney General and Republican Gov. of Pennsylvania Richard Thornburgh and ex-Associated Press head Louis D. Boccardi were panel members who examined the "60 Minutes" report.

Judge Gammerman accepted the fraud count in the amended complaint because Rather alleged damage, namely, a reduction in earnings since he lost his post as CBS Evening News Anchor and "60 Minutes" correspondent. Rather currently produces "Dan Rather Reports" for cable channel HDNet.

CBS and Viacom attorneys are expected to appeal Judge Gammerman's ruling.

Actual Malice Claim v. CBS May Proceed

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A U.S. District Court Judge for the District of New Mexico has ruled that a jury could find actual malice against CBS, giving the go-ahead to a defamation suit brought by a procurement assistant at Los Alamos National Laboratory.

The case, Lillian Anaya and Mel Anaya v. CBS Broadcasting, Inc., et al (No. 06-0476) involves several broadcasts alleging that Mrs. Anaya used $30,000 in government funds to purchase a customized Ford Mustang. The court allowed in part, and denied in part, the defendants' motion for summary judgment, holding that the plaintiffs could pursue punitive damages based on certain statements that aired in follow-up stories. In a 107-page opinion, the court also found that Mrs. Anaya, though initially a private individual when the accusations initially were broadcast, became, for defamation purposes, a limited public figure plaintiff in late 2003 and early 2004 because she sought out the news media to clear her name.

CBS reported that Mrs. Anaya was the target of an FBI probe for allegedly using a government credit card to purchase the Mustang. Court documents claim that an internal inquiry concluded that Mrs. Anaya provided the credit card information via fax to a Mustang dealership in the mistaken belief that she was ordering equipment from a government vendor, unaware that the vendor's phone number had changed and was now a car dealership.

The Court found that the CBS reporter in one story showed footage of a customized Mustang while doing a voiceover stating Mrs. Anaya purchased the vehicle with taxpayer money, despite evidence suggesting no car had been purchased and that the evidence, "supported, at most, an allegation she attempted to charge a car, and the attempt was stopped." The court will allow a jury to decide whetherr CBS intentionally took the report out of context.