Eriq Gardner

President Donald Trump may go far in living up to his much-ridiculed pledge to open up libel laws to make it easier to sue media outlets. How? Turn no further than Abbas v. Foreign Policy Group, a 2014 decision at the US Appeals Court for the DC Circuit authored by recent Supreme Court pick Brett Kavanaugh. At first blush, the decision looks like a win for libel defendants. In fact, when it came out, many reporters highlighted how Kavanaugh poured cold water on the notion that asking a question could be actionable as defamation by implication.

As the US government gets set to fight AT&T's proposed acquisition of Time Warner in a DC federal court, the Department of Justice March 9 submitted a trial brief that sharpens its theories on why the $85 billion merger deserves to be blocked.

The 9th Circuit Court of Appeals reversed a seismic victory in favor of streaming company FilmOn, handing significant relief to broadcasters like CBS, Fox, NBC and ABC who were aghast by a federal judge's decision in July 2015 that streamers could be deemed to be a "cable system" eligible for a compulsory license under the Copyright Act.

The battle took place after the US Supreme Court determined in June 2014 that another streamer, Aereo, had publicly performed the copyrighted work of broadcasters. The high court, though, left some room for further litigation upon Justice Stephen Breyer's opinion that compared unlicensed Aereo to licensed cable systems. After this decision, which ultimately brought down Aereo, FilmOn argued that it was entitled to perform copyrighted works without consent of copyright holders by taking advantage of Section 111 of the Copyright Act, which was enacted by Congress in the 1970s thanks to a perception of the burdensome nature of requiring cable systems to negotiate with every copyright owner over the retransmission of channels on public airwaves. In a huge surprise, US District Court judge George Wu then agreed with FilmOn, writing that "courts consistently reject the argument that technological changes affect the balance of rights as between broadcasters and retransmitters in the wake of technological innovation."

Now a three panel led by Judge Diarmuid O'Scannlain overturned Judge Wu by holding that a service that captures copyrighted works broadcast over the air, and then retransmits them to paying subscribers over the Internet without the consent of copyright holders, is not a "cable system" eligible for a compulsory license.

Aereo pleaded for its life to a New York federal judge, claiming it was "bleeding to death" in its current non-operational state.

US District Court Judge Alison Nathan reacted swiftly, knocking Aereo for having "jumped the gun in filing, without authorization, its motion for emergency consideration of preliminary injunction issues upon remand."

Aereo's motion has been stricken from the record, but the company told the judge, "Unless it is able to resume operations in the immediate future, the company will likely not survive.”

In a letter to US District Judge Alison Nathan, Aereo hints at a new plan.

"Under the Second Circuit’s precedents, Aereo was a provider of technology and equipment with respect to the near-live transmissions at issue in the preliminary injunction appeal," writes its lawyers. "After the Supreme Court’s decision, Aereo is a cable system with respect to those transmissions." And the implications of Aereo now wrapping itself under the cable system banner? "If Aereo is a 'cable system' as that term is defined in the Copyright Act, it is eligible for a statutory license, and its transmissions may not be enjoined (preliminarily or otherwise)," continues its lawyers.

Aereo reports that it is proceeding to file the necessary statements of account and royalty fees, and asserts that the Supreme Court's decision has overruled the 2nd Circuit decision in Ivi, a predecessor digital TV transmitter which once attempted to gain legitimacy through the paying of compulsory license fees. Even if the judge doesn't accept the argument, Aereo says there are still issues to be addressed about the "scope" of any preliminary injunction.

For the past 40 years, there's been a policy that if a home professional football team hasn't sold out tickets at least 72 hours prior to kickoff, the game is subject to a broadcast blackout.

The policy is political pigskin, kicked around by fans, lawmakers and TV companies everywhere. Everyone has always assumed that the policy was meant to ensure great live attendance, but the National Football League is telling the Federal Communications Commission that the policy also ensures that games are televised. The league isn't prepared to let the blackout rule die easily, saying that the system works well for the public and fans.

The league notes that of 256 regular season games in 2013, only two were blacked out. Of course, that was a pretty blackout-light year, but it doesn't stop the league from boasting that the number of blackouts has plunged 92 percent since 2003.

Next, the NFL makes the argument that when Congress passed the Sports Broadcasting Act of 1961, it "adopted the blackout provision not for the sake of protecting the gate in its own right, but instead for the purpose of promoting sports on broadcast television." The league asserts that the rule was one of the big reasons why it was able to enter into exclusive contracts with broadcasters in the first place.

But the NFL goes even further by making the counterintuitive argument that blackouts are leading to more football games on television. "Proponents of repeal rely on the entirely unsupported assumption that the commission’s sports blackout rule reduces the availability of professional sports on television," says the NFL. "To the contrary, over the long run the blackout rule actually increases the availability of sports games on television by encouraging broadcasters and professional sports leagues to reach deals for exclusive broadcast rights."