On Monday at 9:30 a.m. we expect orders from the April 18 Conference. On both Tuesday and Wednesday we expect one or more decisions in argued cases; we will be live blogging both days beginning at 9:45 a.m. This is the first week of the April sitting.
At 11 a.m. next Tuesday, the Supreme Court will hold one hour of oral argument on copyright issues surrounding a new technology for Internet streaming of free TV programs to customers for a monthly fee. Arguing for the over-the-air broadcasters in American Broadcasting Companies, Inc. v. Aereo, Inc., will be Paul D. Clement of the Washington, D.C., office of Bancroft PLLC, with twenty minutes of time. The views of the federal government as an amicus in support of the broadcasters will be presented by Deputy U.S. Solicitor General Malcolm L. Stewart, with ten minutes. The streaming TV entrepreneur Aereo will be represented by David C. Frederick of the Washington, D.C., office of Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, with thirty minutes of time.
Some years ago, the Supreme Court held the view that if an enterprising firm came along that made it easier for television viewers or radio listeners to get the programs they wanted, if they paid a fee, free over-the-air programs were fair game: royalties to the broadcasters didn’t have to be paid even though their programs were copyrighted. This was just a matter of customer choice, the Court said.
Congress did not seem to agree, but maybe it was not so clear in saying so — especially if the technology changed, as was inevitable. That is the issue the Court has now agreed to explore, in a case that the broadcast TV industry is treating as a make-or-break fight for its financial survival — and, indeed, for the survival of free TV itself. And it is a new test of whether federal copyright law has kept up with rapidly changing technology, including new ways to use the Internet to watch TV.
The petition of the day is:
Issue: Whether a medical professional can be convicted of “knowingly and willfully” making a false statement in medical records or reports under 18 U.S.C. § 1035 when the district court failed to instruct the jury that a guilty verdict requires proof of an intent to deceive.
Chief Justice John G. Roberts, Jr., refused on Friday afternoon to delay generic drug manufacturers from offering, as early as next month, competing and lower-priced versions of a widely used drug for treating multiple sclerosis. In a one-page ruling, Roberts said he was not convinced that Teva Pharmaceuticals USA, Inc., would suffer serious harm from the competition because it can later sue the generic companies for damages if its key patent on the drug Copaxone is ultimately upheld.
The generic companies will be in position to enter the market with their versions as of May 24, if they receive final approval from the government by then to do so. In any event, they have indicated that they plan to start selling their products within a matter of weeks. One major consideration for company executives, as they make their plans, will be the prospect of potentially having to pay Teva damages that could run into the hundreds of millions of dollars, if they ultimately lose the current fight over the validity of Teva patents on Copaxone.
Technically, under the Court’s rules, Teva could take its plea for protection from its rivals to another Justice, but getting a favorable result from that maneuver is not a strong prospect.
If a taxpayer refuses to respond to a summons issued by the IRS, the government must take the summons to a federal district court to seek enforcement. There, the government generally provides sworn affidavits to support a prima facie case in support of enforcement, consistent with United States v. Powell. What if the summons recipient then alleges that the summons has been issued for an improper purpose? Must the district court grant an evidentiary hearing? The government successfully sought Supreme Court review of this issue following a per curiam decision against it, and in the summons recipient’s favor, in United States v. Clarke.
Coverage of the Court focuses on next week’s oral arguments in American Broadcasting Companies v. Aereo, in which the Court will consider whether Aereo’s streaming of broadcast television programs over the Internet violates federal copyright laws. Robert Levine previews the case for Bloomberg Businessweek, while in an op-ed for The Daily Caller, Gary Shapiro urges the Court to “side with Aereo.” In an op-ed for The Wall Street Journal’s Market Watch, Nat Worden contends that, if Aereo “wins, the entire media and entertainment industry could be transformed.”
In other Court-related news, last night Justices Antonin Scalia and Ruth Bader Ginsburg made a joint appearance at the National Press Club, where they both suggested that the Court would eventually weigh in on the legality of the National Security Agency’s surveillance activities. Lawrence Hurley reports on the event for Reuters.
Neither side in an important test case on the constitutional standard that courts should use in gay rights lawsuits supported a new hearing on that issue in the U.S. Court of Appeals for the Ninth Circuit. Amid new filings on Thursday, one side did call for en banc review, but not on the standard for reviewing claims of discrimination based on sexual orientation.
The case of SmithKline Beecham Corp. v. Abbott Laboratories involves a civil antitrust dispute between drug companies, but it has gained more prominence because of its potential impact on court review of the constitutionality of state bans on same-sex marriage. Whether the Ninth Circuit will now move on to review the proper constitutional test remains uncertain in the wake of the new papers filed in that court. The two documents can be found here and here.
The petition of the day is:
Issue: (1) Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “justifiable need” for doing so.
Teva Pharmaceuticals USA, Inc., the maker of a widely used drug for treating multiple sclerosis, told the Supreme Court on Thursday that it is willing to put aside promptly up to $500 million to cover marketing losses that generic competitors might have if Teva succeeds in keeping them on the sidelines for months with their lower-priced alternative versions of the drug.