Dollar higher as market awaits Japan PM speech

TOKYO: The dollar rose against the yen in Asia on Wednesday as investors await a speech by Japanese Prime Minister Shinzo Abe on his growth strategy for the economy.

The greenback bought 100.18 yen in Tokyo morning trade from 99.98 yen in New York late Tuesday while the euro also edged up to 130.96 yen from 130.79 yen.

The euro bought $1.3072 against $1.3079 in New York.

Abe is due to deliver a speech later Wednesday that observers hope will provide details on his policy to stoke growth.

"I'm guessing he might give lip service," a senior dealer at a major European bank in Tokyo told Dow Jones Newswires.

Abe's policy of active government spending coupled with the Bank of Japan's aggressive monetary easing has boosted Tokyo stock prices to multi-year highs, but the market has been prone to recent wild swings.

The benchmark Nikkei 225 index on the Tokyo Stock Exchange was down 0.23 percent in mid-morning trade Wednesday.

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Dollar weakens in Asian trade

TOKYO: The dollar weakened in Asian trade Thursday with few trading cues as firms adjust their month-end forex positions, dealers said, while concerns about global growth hung over markets.

The greenback had dropped below the 101-yen level in early Tokyo trade as the Nikkei 225 plunged more than three percent -- yen trade and the benchmark stock index are closely interlinked as the value of the Japanese currency directly affects the competitiveness of the country's exporters.

But by midday, the dollar crept back to 101.07 yen against 101.13 yen in New York late Wednesday.

"No news are behind the move, just flows," a senior dealer at a major Japanese bank told Dow Jones Newswires.

"The correlation between movements in the Nikkei and the dollar/yen appear to be gradually weakening. I think support at the 100-yen level remains strong."

Japanese firms are major currency sellers and buyers as part of running their overseas operations with euro trade also affected by such deals on Thursday, dealers said.

The European single currency gained to $1.2960 from $1.2942 in US trade, while it strengthened against the Japanese unit to 131.01 yen from 130.87 yen.

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Dollar slips in Asian trade after US rally

TOKYO: The dollar lost ground in early Asian trade on Wednesday after flying on fresh data that showed US consumer confidence and home prices were on the rise.

The figures are the latest evidence that the world's biggest economy could be mounting a recovery, paving the way for the US Federal Reserve to roll back its huge bond-buying programme known as quantitative easing.

Dollar trade has been influenced by differing views over comments from Fed chairman Ben Bernanke last week, although dealers generally viewed the central bank chief as saying the Fed needed to see a few months' more data before it would tighten policy.

In Tokyo morning trade, the dollar bought 102.14 yen, slipping from 102.32 yen in New York late Tuesday.

"The dollar is becoming the main driver of the (dollar/yen) pair and focus will increasingly be on the Fed's stance toward its bond buying and indicators like US jobs data," Kengo Suzuki, forex strategist at Mizuho Securities, told Dow Jones Newswires.

The greenback jumped Tuesday following the release of the S&P/Case-Shiller report on March US housing prices, showing they were up 10.9 percent in over March 2012, the largest year-on-year increase since April 2006.

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Dollar under pressure in Asia after mixed data

TOKYO: The dollar was mixed in Asian trading on Monday as it faced pressure from data that showed US consumer spending was down in April although shoppers' confidence climbed.

The greenback gained on the yen as Tokyo's Nikkei 225 stock index pared back some of its early losses. The index is closely linked with the yen as the currency's value affects the profitability of Japanese exporters.

Credit Agricole said dollar strength was likely to continue.

"We expect USD/JPY downside to be increasingly limited and stick to the view that the pair will ultimately resume its uptrend," it said.

In Tokyo morning trade, the dollar bought 100.67 yen, gaining from 100.37 yen in New York late Friday, while the euro was also stronger against the Japanese currency at 130.89 yen from 130.44 yen last week.

Against the dollar, the European single currency was slightly stronger at $1.3004, from $1.2996 in US trading.

On Friday, the US Commerce Department reported that consumer spending dropped by 0.2 percent in April, the first monthly fall since May 2012 and a signal that growth slowed at the beginning of the second quarter.

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Dollar firms in Asia as stocks rebound

TOKYO: The dollar firmed against the yen in Asia Friday, shrugging off weak US growth figures as a rebound in Tokyo stocks boosted risk sentiment and pulled investors away from the safe-haven yen.

The greenback fetched 101.05 yen in Tokyo morning trade from 100.74 yen in New York late Thursday, while the euro also strengthened to 131.79 yen from 131.39 yen. The European single currency was flat at $1.3042.

"Previously the yen's weakening raised expectations for an improvement in corporate profits and pushed Japanese stocks higher, but these days gains in stocks are leading to a weaker yen," a senior dealer at a major Japanese trust bank told Dow Jones Newswires.

Yen trading and Japanese stocks are closely interlinked as the value of the unit affects the competitiveness of the country's exporters overseas.

Tokyo's benchmark Nikkei 225 index was up about two percent Friday morning on the back of buying on dips after tumbling more than five percent the previous day to a five-week low.

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Viacom, YouTube Spar Again Over Billion Dollar Copyright Lawsuit

Before the Second Circuit Court of Appeals handed down its big decision last year in Viacom v. YouTube, there was an expectation that that the appellate judges would offer some needed clarity on when exactly internet service providers are safe from or in danger of copyright infringement liability.

The Second Circuit overturned the lower court's decision to throw out Viacom's billion dollar claims that YouTube hosted copyright infringing material. In doing so, the appeals court agreed with much of what YouTube had to say about the high threshold of knowledge of infringements before ISPs are required to expeditiously remove material, but also determined that the federal judge hadn't properly considered whether YouTube may have had actual knowledge of specific infringing clips or whether YouTube might have essentially willfully blinded itself from having that knowledge.

It was a mixed decision for both the parties, and legal observers have debated the meaning of the ruling.

Now the case is back at the lower court before U.S. District Court Louis Stanton for further consideration, but before the judge issues the next big ruling that decides whether the case will be dismissed a second time or proceed to trial, the judge will have to figure out an even more fundamental question: Which side bears the burden of showing requisite knowledge of infringements at the summary judgment stage? Both sides are now accusing the other of shifting that burden.

Last November, Google's YouTube made a new attempt to win the case on summary judgment. That bears at least a little bit of emphasis: YouTube went first.

In a motion that only became unsealed on Friday, the defendant said that Viacom couldn't make a showing that it had actual or red-flag knowledge -- that "there is no evidence from which a jury could find that YouTube actually knew, or was aware of facts and circumstances from which it was apparent, that any of Viacom’s clips-in-suit were infringing, let alone that YouTube failed to expeditiously remove any such clips."

PHOTOS: Hollywood's 10 Most Gripping Legal Dramas

Viacom responded with a somewhat startling admission. "It has now become clear that neither side possesses the kind of evidence that would allow a clip-by-clip assessment of actual knowledge," said the plaintiff.

But Viacom continued:  

"It is not Viacom’s burden to prove specific knowledge or awareness. That factual issue is relevant only to the affirmative defense that YouTube is asserting; knowledge of specific infringements is not an element of Viacom’s copyright infringement claims against YouTube. At trial, it will be enough for Viacom to prove that the clips-in-suit were on the website, along with some other elements of infringement liability. It follows that Defendants cannot win summary judgment by pointing to the absence of record evidence that would allow a jury to decide which clips-in-suit were specifically known to senior YouTube executives."

So it's YouTube's responsibility to go first with the evidence? Not so fast...

According to YouTube's reply: 

"Viacom does not even try to make the showing of clip-specific knowledge required by the Second Circuit’s ruling. It instead reverses course and claims that it is YouTube’s burden to affirmatively establish its lack of knowledge as to each specific clip-in-suit. Viacom’s novel burden-shifting argument is wrong. It is contrary to the Second Circuit’s decision, all the case law, and the structure of the DMCA itself. Viacom also ignores the record. YouTube has identified more than sufficient evidence of its lack of knowledge of infringement — including the very fact that the voluminous record in this case contains no evidence of such knowledge. Viacom’s inability to offer any evidence from which a jury could find that YouTube had actual or red-flag knowledge of even a single clip-in-suit requires that summary judgment be entered in YouTube’s favor."

Both sides are now proceeding to spar on what might be said to be a bit of a procedural conundrum.

On one hand, besides making the case that there are triable issues of fact concerning whether YouTube willfully blinded itself by disabling community flagging and initially declining to do more filtering, Viacom points out that a grant of summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact.”

Remember, this is a pre-trial motion. Inferences are supposed to be drawn to the party opposing a summary judgment motion -- in this instance, Viacom.

On the other hand, YouTube knows that the 2nd Circuit essentially said last year that Viacom would have to eventually demonstrate that it had knowledge or willful blindness to specific infringing clips. If it is YouTube's burden to "affirmatively introduce evidence that it lacked knowledge of each video at issue," then that pretty much eviscerates any possibility that an ISP can gain success at the pre-trial phase in a copyright infringement lawsuit like this present case. After all, how is it possible to prove a negative -- i.e. "no knowledge"?

YouTube says, "This is the first time that Viacom has ever made such an argument."

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner

View the original article here

Viacom, YouTube Spar Again Over Billion Dollar Copyright Lawsuit

Before the Second Circuit Court of Appeals handed down its big decision last year in Viacom v. YouTube, there was an expectation that that the appellate judges would offer some needed clarity on when exactly internet service providers are safe from or in danger of copyright infringement liability.

The Second Circuit overturned the lower court's decision to throw out Viacom's billion dollar claims that YouTube hosted copyright infringing material. In doing so, the appeals court agreed with much of what YouTube had to say about the high threshold of knowledge of infringements before ISPs are required to expeditiously remove material, but also determined that the federal judge hadn't properly considered whether YouTube may have had actual knowledge of specific infringing clips or whether YouTube might have essentially willfully blinded itself from having that knowledge.

It was a mixed decision for both the parties, and legal observers have debated the meaning of the ruling.

Now the case is back at the lower court before U.S. District Court Louis Stanton for further consideration, but before the judge issues the next big ruling that decides whether the case will be dismissed a second time or proceed to trial, the judge will have to figure out an even more fundamental question: Which side bears the burden of showing requisite knowledge of infringements at the summary judgment stage? Both sides are now accusing the other of shifting that burden.

Last November, Google's YouTube made a new attempt to win the case on summary judgment. That bears at least a little bit of emphasis: YouTube went first.

In a motion that only became unsealed on Friday, the defendant said that Viacom couldn't make a showing that it had actual or red-flag knowledge -- that "there is no evidence from which a jury could find that YouTube actually knew, or was aware of facts and circumstances from which it was apparent, that any of Viacom’s clips-in-suit were infringing, let alone that YouTube failed to expeditiously remove any such clips."

PHOTOS: Hollywood's 10 Most Gripping Legal Dramas

Viacom responded with a somewhat startling admission. "It has now become clear that neither side possesses the kind of evidence that would allow a clip-by-clip assessment of actual knowledge," said the plaintiff.

But Viacom continued:  

"It is not Viacom’s burden to prove specific knowledge or awareness. That factual issue is relevant only to the affirmative defense that YouTube is asserting; knowledge of specific infringements is not an element of Viacom’s copyright infringement claims against YouTube. At trial, it will be enough for Viacom to prove that the clips-in-suit were on the website, along with some other elements of infringement liability. It follows that Defendants cannot win summary judgment by pointing to the absence of record evidence that would allow a jury to decide which clips-in-suit were specifically known to senior YouTube executives."

So it's YouTube's responsibility to go first with the evidence? Not so fast...

According to YouTube's reply: 

"Viacom does not even try to make the showing of clip-specific knowledge required by the Second Circuit’s ruling. It instead reverses course and claims that it is YouTube’s burden to affirmatively establish its lack of knowledge as to each specific clip-in-suit. Viacom’s novel burden-shifting argument is wrong. It is contrary to the Second Circuit’s decision, all the case law, and the structure of the DMCA itself. Viacom also ignores the record. YouTube has identified more than sufficient evidence of its lack of knowledge of infringement — including the very fact that the voluminous record in this case contains no evidence of such knowledge. Viacom’s inability to offer any evidence from which a jury could find that YouTube had actual or red-flag knowledge of even a single clip-in-suit requires that summary judgment be entered in YouTube’s favor."

Both sides are now proceeding to spar on what might be said to be a bit of a procedural conundrum.

On one hand, besides making the case that there are triable issues of fact concerning whether YouTube willfully blinded itself by disabling community flagging and initially declining to do more filtering, Viacom points out that a grant of summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact.”

Remember, this is a pre-trial motion. Inferences are supposed to be drawn to the party opposing a summary judgment motion -- in this instance, Viacom.

On the other hand, YouTube knows that the 2nd Circuit essentially said last year that Viacom would have to eventually demonstrate that it had knowledge or willful blindness to specific infringing clips. If it is YouTube's burden to "affirmatively introduce evidence that it lacked knowledge of each video at issue," then that pretty much eviscerates any possibility that an ISP can gain success at the pre-trial phase in a copyright infringement lawsuit like this present case. After all, how is it possible to prove a negative -- i.e. "no knowledge"?

YouTube says, "This is the first time that Viacom has ever made such an argument."

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner

View the original article here