Last September, broadcasters and amici supporters filed their briefs in the Second Circuit in WNET v Aereo. Within the last week or so, Aereo and its amici began to file their briefs in response. You can read Aereo’s brief here, as well as a brief from the EFF, Public Knowledge and the Consumer Electronics Association (CEA) and a brief from law professors.

Aereo, if you recall, is an online service which, like cable or satellite TV, retransmits broadcast television signals to paying services. But, unlike cable and satellite providers, Aereo is not licensed to publicly perform these copyrighted works because, as it argues, the equipment it uses is really, really tiny.

I’ve previously written about Aereo here. In July, the district court denied a preliminary injunction against Aereo. The broadcasters appealed that decision, and I’ve written about why I believe the court erred in denying the injunction. Oral arguments are scheduled for November 30th.

But as the appeal wends its way through the Second Circuit, I wanted to take a look at some of the arguments favoring the court’s decision both in the recently filed briefs and online. The reaction from amici and bloggers in support of Aereo is actually quite astonishing. So astonishing, in fact, that it seems at times that we’ve left the real world and entered Opposite Town. Let’s take a look at some of these arguments.

Aereo merely provides TV reception equipment for personal use.

A good deal of effort is spent characterizing Aereo as something other than your typical cable provider. It’s merely a facility where TV viewer’s can rent equipment similar to what they would use at home to watch and record their favorite shows, which certainly doesn’t require licensing. This is the crux of Aereo’s argument on appeal:

Aereo provides a technology platform that enables consumers to use remotely-located equipment, including an individual antenna and digital video recorder (“DVR”), to create, access and view their own unique recorded copies of free over-the air broadcast television programming. Essentially, for a small monthly fee, consumers are able to take advantage of current technology to use remotely-located “in the cloud” equipment functionally identical to that which they would otherwise have and use in their home for those same purposes.

Others have framed Aereo’s service this way as well. David Post, one of the law professors who signed the amicus brief, wrote in a blog post last week that “Aereo is in the business of allowing consumers, in effect, to rent a little teeny TV antenna that can pick up over-the-air broadcasts, and a little teeny bit of disk storage space, and then to record over-the-air programming for later viewing over the Net.” Last spring, Public Knowledge wrote, “No one thinks that it’s a public performance if a TV viewer attaches an antenna to his TV. Nor does a store like Radio Shack, who might have sold him the antenna, infringe any copyrights by doing so. Aereo is a bit different than this–it rents out antennas to TV viewers in the New York area, but keeps them in their own facility (which gets better TV reception).” And in its brief with the EFF and CEA,  it argues that Aereo’s service is no different from “the classic form of TV reception with a living-room set and a personal antenna, with the only difference being the length of the wire between antenna and set (or the replacement of that wire with an equivalent self-to-self transmission over the Internet).”

In effect, Aereo and its amici argue that its service — which receives transmissions of TV broadcast signals and retransmits them to paying subscribers — is the opposite of a cable service provider — which receives transmissions of TV broadcast signals and retransmits them to paying subscribers.1

Aereo’s own terms of service even belie its characterization of its service as merely renting remotely-located equipment controlled by users. It grants users only a “non-exclusive, non-transferable, limited right to use and control” its equipment, it prohibits subscribers from using its equipment for “any commercial purpose whatsoever.” Aereo “retains exclusive ownership of all right, title, and interest in and to the Equipment, Site, and the Aereo Platform” and does not allow any subscriber to “reverse engineer, disassemble, modify, decompile and/or create derivative works of the Site, Equipment and/or the Platform.” And finally, “You may not transfer or attempt to transfer material available on Aereo’s Site and/or through your use of the Equipment and/or Platform, to another storage device or medium other than the DVR Equipment for your personal use.” It would seem that the difference between Aereo’s service and a viewer’s personal equipment is far more substantial than “the length of the wire.”

Aereo should win because of copyright’s technological neutrality.

Copyright law should be technologically neutral — I agree that this should be the default rule. Some of Aereo’s supporters have used this point to argue in favor of the service. Duke University Scholarly Communications Officer Kevin Smith, for example, has said that “such neutrality would seem to favor Aereo” in a recent post.

How so? Aereo’s primary argument is that it uses a lot of little antennas instead of one big antenna. CATV, cable providers, and satellite, retransmit broadcast signals through their systems to their subscribers. Aereo retransmits broadcast signals through its system to its subscribers. The former must have permission from the copyright holders to do so. Aereo argues it does not need permission, solely because the technology it uses is somewhat different.

This sounds like the exact opposite of “technological neutrality.”

Aereo assists in cord-cutting.

Indiewire asks, “Is Aereo the answer for cable cord-cutters who still want access to live TV?” Duke’s Kevin Smith says, “as someone who has long wanted to ‘cut the cable,’ I might be interested in the Aereo service if it is upheld.” Mashable says “Aereo makes cutting the cord even easier, and cheaper.” Wired describes Aereo as “one small step for cord cutting.

Let me see if I got this straight. Cable TV provides access to broadcast TV for a monthly fee. Aereo provides access to broadcast TV for a monthly fee.

Switching from one to the other sounds like the exact opposite of “cord-cutting.”

Aereo is innovative.

Aereo and its supporters go to great pains to cast the service as an “innovation.” The law professor amicus brief, for example, frames this case as one involving “new technologies” and “major technological innovations.”

The TV antenna is not a new technology. Internet streaming is not a new technology.

Retransmitting TV broadcasts is not innovative — CATV has been around in the US since at least 1948 and has required a license since the Copyright Act of 1976.2 And Aereo is not the first website to try retransmitting broadcast signals over the internet without permission — Canadian company iCraveTV tried a similar service over a decade ago.3

The only “innovation” displayed by Aereo is the claim that it has figured out a way to do what cable providers do without having to pay license fees like they do. But building a system that does the same thing as something invented over 60 years ago sounds to me like the opposite of innovation. Here, “innovation” seems like merely a code word for “infringement.”

Aereo is furthering the public interest.

The EFF resurrects its argument that exempting Aereo from copyright liability furthers the public interest, an argument rejected by the district court even though it denied the preliminary injunction. According to the EFF, there is a public policy interest in making television broadcasts freely accessible to the public. But Aereo charges for this service. This sounds to me like the opposite of free.

Courts should rewrite the law to prop up Aereo’s business model.

Much ink has been spilled over a brief filed in favor of broadcasters by former Register of Copyrights Ralph Oman. In it, Oman argued that “It is nothing less than a major new exception, which could permit streaming of copyrighted works over the Internet … Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established.”

Because copyright law is entirely a creature of statute, it is up to Congress to define its scope rather than courts. This has been a defining feature of copyright law, and one that has often acted to the detriment of copyright holders.4 But, it seems, when this principle acts instead to the detriment of an economic user of copyrighted works, outrage ensues.

Much of this outrage stems from a severe misconstruction of Oman’s arguments. Peter Suderman at the Reason blog, for example, believes Oman is suggesting that inventors must “ask Congress for permission before releasing any new product.” Part is also based on a logical fallacy; says Suderman, “Aereo designed its system to be technically legal.” But that begs the question that Aereo’s interpretation of copyright law and its design based on that interpretation is, in fact, “technically legal.”

Duke’s Kevin Smith also takes exception to this portion of Oman’s brief, writing, “This is an extraordinary statement, suggesting that the Copyright Act was intended to force all innovators to go to Congress before beginning any service that might threaten some established form of exploiting the rights of copyright holders.”

That sounds to me quite ordinary. If Congress passes a law, and a business doesn’t like that law, it has to go to Congress to change the law. I mean, what’s the alternative? Corporations should be allowed to break the law? Perhaps that’s the thinking in Silicon Valley, but I respectfully disagree; corporations should be subject to laws just like everybody else.

Footnotes

  1. 17 USC § 111(f)(3). But note that services which retransmit over the internet do not fall under this definition; WPIX v IVI, No. 11-788-CV (2012). []
  2. 17 USC § 111, P.L. 94-553 (Oct. 19, 1976). []
  3. A court subsequently enjoined iCraveTV’s streaming service. []
  4. See, for example, Sony v Universal City Studios, 464 US 417 (1984); Fortnightly v United Artists Television, 392 US 390 (1968); White-Smith Music Publishing v Apollo, 209 US 1 (1908). []

8 Comments

  1. I find the circumstances associated with the submission of the “34 Professors” brief quite unusual. I do not recall ever having seen an “Amicus Brief in Response to Another Amicus Brief with which I/We Disagree”.

    I also find this brief quite frustrating to read in that in my view it continues to conflate original works of authorship with inventions. To my knowledge there is no disagreement that the over-the-air broadcasted material comprise original works. Also to my knowledge, there is no disagreement that the hardware/software system created by the defendant is outside the scope of copyright law. Patent law? Maybe. Copyright law? No.

    The central issue in my view is whether or not the system is being used in a manner that infringes one or more of the exclusive rights conferred by copyright law. To my knowledge there is no “tiny antenna” exception to Section 106. Reliance on Sony as support for the position taken by the “34” (down from 53 in Eldred”) is a slender reed indeed, not to mention a misreading of that case. Of course, cherry-picking Doyal and later cases referencing it does not help.

    • Of course, cherry-picking Doyal and later cases referencing it does not help.

      The “sole interest of the United States” quote that Terry debunked last week strikes again!

  2. The lead-off in Sudeman’s blog post:

    “Imagine a world in which inventors and innovators had to ask Congress for permission before releasing any new product that might possibly put current copyrights at risk.”

    Perhaps he missed the “suitable for a substantial non-infringing use” qualification recited in Sony. BitTorrent certainly falls within the qualification, and yet cases have been decided shuttering some sites. Why? Because it is not the invention/product, but rather how the invention/product is being used.

    Is this really a difficult concept to grasp? Apparently so for the all-too-predictable gang of “34”.

  3. Thing is; their “tiny antenna” WOULD be perfectly legal…. if they just got [ie paid] for broadcast licenses like any other provider…

    I’m pissed too — that i can’t just grab shi…err stuff out of another persons’ store without paying; and then sell that stuff in my store. What’s this world coming to? [/sarcasm]

    Not surprising that Google… err i mean “EFF”… are weighing in.

  4. Terry,

    I was following along and mostly agreeing with your thoughts until you wrote this:
    ===
    This has been a defining feature of copyright law, and one that has often acted
    to the detriment of copyright holders.
    ===

    Ummmm….As a counter example, I’ll mention that *every* time the copyright of some major piece of work comes close to expiring, Congress acts to increase the copyright duration. I think it’s called something like the Mickey Mouse Extension.

    Randy — sorryitdoesntfly

  5. I substantially agree with you, except on your cord-cutting analysis.

    It seems to me that “cord-cutting” represents replacing cable’s bundle with a different, more user-directed bundle (i.e., some constellation of streaming services that meets the customer’s needs). I admit to not having full knowledge of the facts in this case, but it strikes me that the bundles on offer are different- aereo sells a smaller collection of channels than the typical cable package. To that extent I would argue that switching to aereo indeed qualifies as “cord-cutting.”

    But your brief treatment of this particular issue is warranted: who cares? Cord-cutting should not be a goal in itself, just as protection of the cable business model should not be a goal in itself. As you highlight, copyright neutrality in this case dictates that aereo be treated just like the “legacy” rebroadcasters, so its service constitutes infringement so long as it refuses to pay licensing fees (as its business plan dictates it must).

  6. I believe you are purposefully misreading Kevin Smith’s post. The government should not be in the business of protecting specific business models, though that is what lobbyists certainly promote, sometimes successfully. One needs to distinguish the form in which rights are exploited from the rights themselves. Mr. Oman appears to conflate those, seeming to suggest that one needs permission to challenge the legacy business model(s).

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