Jenner & Block

Content Protection

Jenner & Block is a nationwide leader in helping content creators safeguard their intellectual property on the internet and in other advanced media.  Our attorneys have worked in and with the entertainment community.  Among our ranks are a former head of litigation for the Recording Industry Association of America and a former general counsel for the Entertainment Software Association.  We combine deep insight of the affected industries, broad legal experience, and the technological knowledge and sophistication to help our clients protect their content across all media and platforms.  Because of this experience, a broad array of companies with copyrights in valuable intellectual property – from record companies to motion picture studios to publishers to technology companies – regularly call upon the Firm for representation and counsel.

Our lawyers have handled some of the most important online copyright cases of our time, starting with the seminal Napster case, and including MGM Studios v. Grokster, which The National Law Journal described as “the most important copyright challenge in decades,” and Viacom v. YouTube, which has been called “the most high profile and momentous case in the copyright market.”
We understand the challenges of protecting creative content in an ever-changing technology environment.  Indeed, believing that lawyers, not just technologists, must gain intimate familiarity with the technologies of interest to our clients, the firm pioneered the launch of an “Advanced Media Lab” to allow our attorneys to work hands-on with the latest products and technologies.  Chances are, if a new platform or technology is emerging, we are following it and studying its implications for the content, media and entertainment industries.
Our attorneys are versed in all aspects of U.S. copyright law, including the Digital Millennium Copyright Act (DMCA), and have been at the forefront of issues of importance to content creators, including those related to:

  • Online “lockers” and “cloud” computing.
  • Peer-to-peer networks, whether website or application based.
  • User uploaded content sites.
  • Online retransmission of television broadcasts.
  • Link sites and search engines.
  • Webcasting, internet radio and other audio and video streaming services.
  • Satellite radio services.
  • USENET and other server-based systems.
  • Portable and mobile devices.
  • Commercial hosting services.
  • DMCA notices and safe harbors.
  • Copyright filters and content protection technologies.
  • Circumvention of access and copy control technologies under the DMCA and related laws.
  • Identification of online infringers through DMCA subpoenas, “Doe” suits and otherwise.
  • Establishing U.S. jurisdiction over foreign infringers.
  • Cross-border copyright enforcement.

We regularly counsel clients on content protection and enforcement strategies, and help them analyze complex issues concerning the application of copyright and related laws to evolving technologies and to new business models, platforms and products.
We recently have led negotiations with major Chinese websites that have resulted in seminal content protection agreements to prevent infringement of our clients’ entertainment properties in that important market.
Representative cases handled by our Advanced Media | Content Protection team include:

  • MGM Studios v. Grokster :  Jenner & Block represented every major U.S. motion picture studio and record company in the landmark copyright case involving peer-to-peer file-sharing services Grokster and Streamcast.  A unanimous Supreme Court adopted the “inducement” theory of copyright liability, holding that “one who distributes a device with the object of promoting its use to infringe copyright” is liable for the resulting infringement.  The victory made clear that those who intend to foster copyright infringement by others are liable as contributory infringers.  On remand, our team secured summary judgment against Streamcast for inducing copyright infringement.  The Firm also led negotiations on behalf of record companies worldwide resulting in a $115 million settlement with defendant Kazaa.  The settlement (among the highest in copyright history) resolved litigation on three continents and resulted in Kazaa implementing sophisticated copyright filters to prevent further infringement.
  • Viacom v. YouTube:  Jenner & Block represented Viacom in settling a “landmark legal battle” (Financial Times) and a case that was largely viewed as one of the most significant copyright cases of our time, debating the use of copyrighted videos on Google's YouTube service without permission.  Earlier in this legal battle, the firm won an important victory for Viacom and the content industry when the U.S. Court of Appeals for the Second Circuit reversed the trial court’s grant of summary judgment in favor of defendants, and remanded the case for further proceedings.  The settlement, as described by Reuters, “ends seven years of litigation that drew wide attention from Hollywood, the music industry and Internet companies, and which tested the reach of a federal law designed to thwart piracy while letting people find entertainment online.”
  • Disney Enterprises v. Hotfile Corp.:  In a case being closely watched by the worldwide copyright community, the Firm is representing the major motion picture studios in an infringement action against Hotfile Corp. and one of its principals.  As alleged in the complaint, Hotfile is an infringing “download hub” (sometimes referred to as a “one-click host” or “cyberlocker”) that openly encourages users to upload popular infringing content to its computer servers so it can charge other users to access and download that content.  Such pirate download hubs are the fastest growing source of online copyright infringement, affecting every copyright industry, and have emerged very quickly to rival peer-to-peer networks as the largest vehicle for online copyright infringement.
  • WNET v. Aereo:  In a case of critical importance to the entire broadcast television industry, Jenner & Block represents a consortium of broadcast television companies (including Fox Television Stations, PBS, WPIX, Univision Television Group, and WNET) in an action against a company, Aereo, Inc., that captures over-the-air television programming and retransmits that programming over the internet without the authority of the copyright owners.  The case, currently on appeal to the Second Circuit Court of Appeals, will determine the scope of the “public performance” copyright for over-the-air television broadcasts.
  • Arista Records v. Lime Group LLC:  Jenner & Block lawyers represented all major record companies in a lawsuit against the makers, distributors and promoters of the “LimeWire” peer-to-peer client software, which at its peak was the most widely used peer-to-peer software in the world.  The lawsuit, the first to be brought against a P2P company in the wake of the Supreme Court’s landmark decision in MGM v. Grokster (see above), resulted in a finding of the defendants’ copyright infringement liability on summary judgment, the closing of LimeWire’s operations, the disabling of the LimeWire client software, and a payment of $105 million to the record companies in settlement of the case.  The record companies also succeeded in dismissing the defendants’ antitrust counterclaims in what was the first application of the pleading standard established by the Supreme Court in Bell Atlantic v. Twombly in a post-Twombly antitrust case.
  • Fox Broadcasting Company v. DISH Networks:  Jenner & Block is representing several Fox entities in an action against DISH Networks that may determine the future of the advertising-supported television ecosystem.  DISH has launched a new “PrimeTime Anytime” service that, upon being enabled once, makes unauthorized copies of the entire primetime broadcast schedule for all four major networks every night, for the express purpose of providing “on demand access” to that programming.  Making matters worse, DISH operates its PrimeTime Anywhere service so that the copies it makes are viewable commercial free.  As alleged in the complaint, DISH’s conduct violates both the Copyright Act and Fox’s contractual rights.  The Jenner team recently won transfer of an anticipatory suit filed by DISH in New York.  The case will now proceed in California.
  • Columbia Pictures v. Fung (Isohunt):  Jenner & Block won summary judgment in favor of the major motion picture studios in the first-ever U.S. decision to address the merits of copyright claims against a peer-to-peer BitTorrent file trading service.  The court held that the Isohunt website and its owner were liable for inducing copyright infringement of the studios’ works.  In another first ruling of its kind, the court also held that defendants could not rely on the “safe harbors” in the Digital Millennium Copyright Act because defendants actively promoted copyright infringement.  The Firm argued the case to the Ninth Circuit Court of Appeals in May 2011.  The decision is expected to set important precedent governing the interplay between Grokster “inducement” liability and the “safe harbors” of the Digital Millennium Copyright Act.
  • Arista Records v. Usenet.com:  Jenner & Block represented all major U.S. recording companies in a copyright infringement action against a commercial USENET server operator.  USENET is a network of online bulletin boards where subscribers obtain access to files posted by other users and distributed by USENET operators.  Accepting each of the Firm’s arguments, the court granted summary judgment, holding that the defendants, Usenet.com, Inc. and its owner, were liable for both direct and secondary copyright infringement.  The Firm also won broad evidentiary sanctions based on defendants’ destruction of evidence and other egregious litigation misconduct.  The case represents the first published decision holding a USENET operator liable for copyright infringement.
  • Ventura Content v. Mansef: The Firm successfully represented a leading adult entertainment company in a copyright infringement suit against the owners of several popular “tube” sites that provide users with access to adult videos, the vast majority of which were infringing.  In a case that had important ramifications for the broader adult entertainment industry, the Firm successfully engineered a settlement that, in addition to providing compensation for our client, required the defendants to implement video “fingerprinting” copyright filters to prevent further infringement of copyrighted works belonging to the entire adult entertainment industry.
  • Capitol Records v. MP3tunes:  Jenner & Block currently represents EMI Music North America and several of its record label affiliates in an action against a web service (MP3tunes) alleging that, among other copyright violations, MP3tunes encourages users to copy (or “sideload”) music found on the internet to online “lockers” provided by MP3tunes.  MP3tunes’ principal, Michael Robertson, is named as a defendant on the basis of his widespread participation in and control over MP3tunes’ infringing activities.
  • Universal Recordings v. Escape Media Group:  The firm currently represents Universal Music Group in a novel case involving the scope of protection for “pre-1972” sound recordings under New York State common law copyright and unfair competition laws.  (Pre-1972 sound recordings are not subject to the protections of the U.S. Copyright Act.)  Through the popular website grooveshark.com, defendant operates a music service that provides users with free access to a vast library of sound recordings, both copyrighted and pre-1972. Nonetheless, in that action, Escape asserted that defenses found in the Copyright Act precluded the claims presented. Recently, The firm won an appeal from the Appellate Division of the New York State Supreme Court dismissing that defense.  This victory was widely hailed as a precedent-setting result for content owners as it strongly suggests that, in appropriate situations, state common law remedies may be an alternative means of content protection.
  • Arista Records v. Mediaservices:  Jenner & Block lawyers represented all major record companies in a lawsuit against the owners and operators of “AllofMP3.com,” a once-notorious Russian website that sold millions of dollars of music downloads throughout the world – all without authorization.  The site had become so infamous that it became a significant sticking point in trade negotiations between the United States and Russian governments, with the U.S. Trade Representative characterizing the site publicly as “the poster child” for internet music piracy.  After the record companies filed suit, and following the denial of the defendant’s motion to dismiss, the website ceased its operations and disappeared.
  • Atlantic Recording Corp. v. Project Playlist:  Jenner & Block lawyers represented several major record companies in a lawsuit against the owner and operator of a then-prominent website that, among other things, provided a searchable index of links to music files available on third-party internet sites and allowed users to organize, stream and download unauthorized copies of those files.  The case settled favorably for the record companies after the defendant’s motion to dismiss was denied.
  • Columbia Pictures v. Bunnell (TorrentSpy):  Jenner & Block represented the major U.S. motion picture studios against TorrentSpy, a now-defunct BitTorrent website that openly encouraged its users to download infringing copies of popular movies and television programs.  After the Firm uncovered defendants’ massive destruction of evidence, the court granted terminating sanctions and entered default against defendants.  Following a contested damages hearing, the court entered judgment against defendants for more than $110 million, and also enjoined defendants from further infringement.  All of the individual defendants then filed for bankruptcy in an attempt to nullify the judgment.  However, with the Firm representing the studios in the bankruptcy proceedings, the bankruptcy court held that the $110 million judgment was a product of defendants’ “willful and malicious” conduct and therefore ineligible to be discharged through bankruptcy. 
  • Atlantic Recording Corp. v. XM Satellite Radio :  The Firm successfully represented all major record companies in an action against XM Satellite Radio over XM’s “inno” portable device.  The inno enabled users to make permanent digital copies of any song being played on XM’s radio service simply by pushing a record button at any time during the playing of the song – thereby converting XM’s licensed radio service into an unauthorized download service in violation of the Copyright Act.  The case resolved on terms favorable to the Firm’s clients after the district court rejected XM’s principal defense that the inno device was immunized from copyright liability by the Audio Home Recording Act of 1992.
  • Motown Records v. iMesh.com :  The Firm represented major record companies in a copyright infringement suit against peer-to-peer company iMesh.  The litigation successfully concluded when iMesh implemented the first-ever commercial audio fingerprinting copyright filter.
  • 321 Studios v. MGM and Atari v. 321 Studios :  Jenner & Block attorneys successfully represented the Motion Picture Association of America and the Entertainment Software Association, and their respective member companies, in separate litigations to enforce the Digital Millennium Copyright Act’s “anti-circumvention” provisions against distributors of software that unlawfully circumvented the access and copy protections incorporated into commercial motion picture and video game DVDs.
  • Arista Records v. Sakfield:  Jenner & Block represented major record companies in a suit against a Spanish company unlawfully distributing music from Canadian servers to U.S. customers through a service called PureTunes.  The case ended in a consent judgment shutting down PureTunes after the Firm successfully dissected more than a half dozen layers of foreign shell companies put in place to conceal the true identities of PureTunes’ U.S. operators.
  • UMG Recordings v. MP3.com:  Jenner & Block lawyers represented the recording industry in their successful efforts to shut down and obtain significant damages from the infamous illegal music service MP3.com.
  • A&M Records v. Napster  :  Jenner & Block lawyers successfully represented all major U.S. record companies in the landmark case against Napster, the first peer-to-peer music trading service.  Napster closed operations shortly after the Ninth Circuit affirmed the preliminary injunction against it.