Michael Elkin
Partner
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A widely recognized trial and appellate lawyer, Michael is known for his precedent-setting wins in “bet-the-industry” intellectual property disputes involving the streaming of motion picture, television, and music properties. His matters are frequently at the core of disputes arising from the digital media evolution at the crossroads of Silicon Valley and Hollywood.
Key Matters
Michael’s practice has helped define the boundaries and landscape of IP law regarding the development, distribution, and use of emerging technologies. He advises cable and tech companies on new, over-the-top technologies for internet distribution, and has successfully defended digital media in game-changing disputes, including cases involving the streaming of motion pictures, television, and music properties.
Notable examples of his work in this area include:
- Secured dismissal of a vicarious copyright infringement claim brought by the music industry against one of the largest ISPs in the United States that sought a billion-dollar-plus damages award for the alleged infringing activities of the ISP’s subscribers.
- In a two-week jury trial where 25 music publishers sought to recover US$30M in statutory damages for established copyright infringement against an interactive music streaming site and its owners, Michael led a Winston team to limit the verdict to just US$189,000 (nearly the absolute floor of a permitted recovery).
- Served as special counsel to the trustee in the bankruptcy of VidAngel, an online video filter and streaming service, providing counsel to the trustee concerning business streaming models of the company against which a US$62.5M judgment had been entered.
- For one of the largest cable companies in the United States, secured a reversal on appeal to the Fourth Circuit (and remand for a new trial) of a jury verdict awarding US$25M on secondary copyright infringement (in a case tried by another firm).
- Obtained important wins for a website providing access to what The Wall Street Journal described as “the most important collection of rock memorabilia and recordings ever assembled in one business,” including in a copyright matter involving the late impresario’s estate and numerous copyright infringement cases brought by music publishing companies and the surviving members/representatives of Led Zeppelin, the Grateful Dead, The Doors, Santana, and Nirvana.
- Won, and successfully defended on appeal, a series of cases for Veoh Networks that first applied and tested the applicability of the Digital Millennium Copyright Act section 512(c) safe harbor protection to website owners and operators that offer user-generated content. Illustrating the significance of this win, a ruling awarding summary judgment to YouTube in a similar highly anticipated copyright infringement case in the Southern District of New York adopted much of the Winston team’s key legal arguments that prevailed in the Veoh
- Secured the denial of a motion for preliminary injunction that had been filed against Aereo, Inc., a digital media venture. The plaintiffs, comprised of 17 television broadcast networks, sued Aereo for copyright infringement based upon Aereo’s transformative mobile streaming television technology. The decision was affirmed on appeal.
- Won a landmark victory for Yahoo! in a decision issued by the U.S. Court of Appeals for the Second Circuit that addressed a series of lower court decisions on music downloading and reasonable royalties. Yahoo! replaced its trial counsel and retained Winston to handle a motion for reconsideration (which initially reduced the judgment by millions of dollars) and this appeal before the Second Circuit. The decision will have far-reaching implications for how performing rights societies like ASCAP will be compensated for the incidental use of their constituent publishers’ music that passes through Internet portals, like Yahoo!—and countless others.
- Won a decision of unique importance for Yahoo! subsidiary Launch Media Inc. in a copyright infringement battle in which up to US$2B in potential damages was claimed. In the first ruling of its kind, the Second Circuit affirmed the jury verdict in our client’s favor and held that personalized webcasting sites do not give listeners enough control over what songs are played to qualify as interactive sites, as the music label plaintiffs had argued.
- Secured a dismissal for Yahoo! at the district court level in a lawsuit brought by prize insurer SCA Promotions over Yahoo’s decision not to continue with a “Tourney Pick ‘Em” promotion for the 2014 NCAA Men’s Division I Basketball Tournament that would have paid the winner US$1B for correctly predicting each of the tournament’s 63 games.
- Won a summary judgment motion for Myxer, the leader in ad-supported mobile entertainment, in a bet-the-industry copyright infringement lawsuit brought by several of the world’s largest record companies alleging that Myxer is violating copyrights by allowing its users to create ring tones based on the plaintiffs’ copyrighted works.