The EFF is a non-profit group dedicated to advocating for electronic freedom, though at times that seems to entail supporting for-profit corporations that don’t want to pay license fees.1 The logic of connecting freedom to not paying suppliers escapes me, but it is not out of line with other arguments made by the group.

Case in point: one of the arguments made by the EFF in an amicus brief it filed last week in the Fox v. Aereokiller case currently in front of the 9th Circuit. Among other points, the EFF argues that Aerokiller should not be enjoined because of something Jack Valenti said 30 years ago.

Aereokiller, like any cable TV provider, retransmits broadcast television to subscribers for a fee. However, unlike cable TV providers that license television programming from copyright owners, Aereokiller has taken the position that it does not need a license. Aereokiller was sued in the Central District Court of California last year by several broadcasters. In December, the court granted a preliminary injunction against Aereokiller, holding that the service was functionally indistinguishable from cable television services. The decision was appealed to the 9th Circuit.

If all of this sounds vaguely familiar, it should. The facts and issues in Aereokiller (as well as the names of the defendants) are very similar to litigation on the other side of the U.S. involving similar service Aereo. There, the district court denied a preliminary injunction against Aereo, citing Second Circuit precedent in Cablevision, and that decision has been appealed and argued in front of the Second Circuit with a decision pending.2

In both Aereo and Aereokiller,3 the defendants argued that copyright law should not be technologically neutral. A cable service may need to license broadcast television to perform it for its subscribers, but if the cable service keeps adding antennas, it eventually reaches a point where it is exempt from copyright liability — and Aereo and Aereokiller both have tons of tiny antennas.4 Because of the similarities between the two cases, different outcomes in each of the Circuit courts could mean we’ll see the issue eventually end up in front of the Supreme Court.

But until then, the 9th Circuit has Aereokiller to review. And it is here that the EFF makes its case.

As noted above, the appeal arises from the grant of a preliminary injunction by the district court. To be awarded a preliminary injunction, the plaintiff in a lawsuit must demonstrate “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.”5

In its response to the first factor, the EFF makes the claim that “The history of litigation against video and audio technologies counsels skepticism of plaintiffs’ irreparable harm claims.” Included in this history: “In 1982, the president of the Motion Picture Association of America famously compared the videocassette recorder to a serial killer.”6 Next, the EFF cites litigation by the RIAA (not a plaintiff here) and Paramount Pictures (also not a plaintiff). It points to statements made in amicus briefs in other cases by ASCAP (not a plaintiff), the American Society of Media Photographers (again, not a plaintiff), and the Progress and Freedom Foundation (not even a company involved in music or films). To support its contention that these statements are wrong, all the EFF can muster up is a report that digital music sales increased in 2011 and a 2009 article from the Economist about DVRs. The EFF concludes that “Given this history, the district court should have treated Appellees’ claims of irreparable harm with greater skepticism.”

Remarkable.

None of this actually speaks to the demonstration of irreparable harm that plaintiffs in this case made and the district court accepted. As the court had noted, Aereokiller’s infringement would cause harms not “easily calculable, nor easily compensable” by threatening “to damage Plaintiffs’ ability to negotiate favorable retransmission consent agreements with cable, satellite and telecommunications providers”, damaging Plaintiffs’ goodwill with their other licensees, competing “with Plaintiffs’ ability to develop their own internet distribution channels”, and harming “Plaintiffs’ position in their negotiations with advertisers.” Textbook irreparable harm.

On a broader note, the EFF’s argument is merely a variation on a common argument that has taken hold among the copyright skeptic set in the past 10-15 years. The idea is to mine past decades (and even centuries) for quotes from disparate sources about different issues and distill them down to a simplistic slogan: copyright owners hate innovation.7 The fallacy of this argument is facially evident, and it is more at home in propaganda than policy (or the court room).

Worse, it ignores the fact that, more often than not, copyright owners have presented legitimate concerns about new technologies exploiting their work without compensation, the law has adapted to address these concerns, and all involved have benefited. In 1906, John Philip Sousa testified to Congress about the need for record manufacturers to compensate songwriters when they recorded and sold their music. Congress responded by including mechanical reproduction among the exclusive rights in the 1909 Copyright Act.8 Record labels have done okay since then. When radio broadcasting was getting off the ground, songwriters sought compensation for the public performance of their works over the airwaves. Case law eventually settled the issue in favor of songwriters;9 AM/FM radio is still going strong nearly a century later. Television producers made the same argument about cable television when it appeared in the middle of the century. Congress provided that retransmission of broadcast television over cable is a public performance in the 1976 Copyright Act. Did cable television die? No, and in fact, today it is involved in the creation of some of the most exciting shows.10

Hopefully, the 9th Circuit recognizes the EFF’s argument for the silliness it is.

Footnotes

  1. See, for example, the EFF/PK amicus brief in AP v. Meltwater and the EFF/PK amicus brief in WNET v. Aereo. []
  2. ABC v. Aereo, 874 F.Supp. 2d 373 (SDNY 2012; see Aereo takes its tiny antennas to Opposite Town. []
  3. Both companies have since sued each other for trademark infringement, adding to the drama. []
  4. Aereo made use of 16 circuit boards with 80 antennas on each, Aereo at 379. The Aereokiller decision suggests that Aereokiller’s system is closely similar to Aereo’s. []
  5. eBay v. MercExchange, 547 US 388, 391 (2006). []
  6. It’s astounding the amount of play this single quote has gotten from copyright skeptics. And it’s telling that citing a 30 year old quote is the strongest argument the EFF can raise here. []
  7. I’ve previously discussed this in A Story of John and Jack and 100 Years of Copyright and Disruptive Technology. []
  8. Sec. 1(e). []
  9. See Jerome H. Remick & Co. v. American Automobile Accessories Co., 5 F. 2d 411 (6th Cir. 1925); M. Witmark & Sons v. L. Bamberger & Co., 291 F. 776 (D. NJ 1923). []
  10. See, for example, Breaking Bad, Mad Men, Louie, the Walking Dead, etc. []

8 Comments

  1. “In both Aereo and Aereokiller,3 the defendants argued that copyright law should not be technologically neutral.”

    The problem is the copyright situation is not technology neutral at all. If I go to the store and buy pair of rabbit ears, I can get all the broadcasts without paying any sort of license fee.

    What needs to be done is something similar to BBC “do you own a television” auditing, people who own antennas must pay a license fee to the broadcasters and we must punish those who don’t. It can be enforced by sending copyright auditors to people’s homes to inspect if they are compliant.

    • Heifer wrote: “The problem is the copyright situation is not technology neutral at all. If I go to the store and buy pair of rabbit ears, I can get all the broadcasts without paying any sort of license fee.”
      .
      Err.. you can’t get cable/satellite channels with rabbit ears, sorry.
      1) the ‘basic’ over-air channels are accounted for, and licenses are paid through the corresponding stations. Revenue for these channels is raised through commercials.
      2) cable/satellite channels beyond the ‘basic’ over the air channels (2-4-5-7,ect) are paid by the cable/satellite companies- and revenue for that payment is generated through subscription fees and commercials.
      3) if you’re getting cable and satellite channels with ‘rabbit-ears’… let me know, as you have some magic ears at your store…

      • This case concerns itself with broadcast channels only. Little known fact is that cable companies have to pay for a license to transmit broadcast channels that are freely transmitted across the airwaves.

        But a individual armed with an antenna can get the same product for free, totally legally. So people who use rabbit ears are basically freeloading to some degree, because cable users have to pay a license for the same content people with rabbit ears can get for free.

        It’s not really fair.

        • Err… no?

          Cable users are not paying a license fee for the same content broadcast users are getting for free. They can get that same content for the small investment in a pair of rabbit ears and no further cost.

          What cable users are paying for is the cable service – which will be the broadcast channels, plus all cable-only channels. The broadcast channels are a bonus – as is the fact you might be getting better reception via cable than with said bunny ears – but I find it hard to imagine people plunking down money for a cable subscription if all they got was the same channels they could recieve via free over-the-air broadcast.

          The people paying the licence fee – as well they should – are the cable companies. This cost admittedly does get passed on to the subscribers, but that is a moot point given that those subscribers will only be paying if they consider cable service valuable enough (and the broadcast channels aren’t likely to be a major component of this perceived value, for reasons above). The cable companies should be paying this licence fee because they are using the broadcast channels as part of their own value proposition: namely that you don’t have to fiddle with switching between your cable and your rabbit ears if you happen to want to watch a broadcast channel.

          The cases in question have the defendants arguing that they aren’t the same as cable, because they have lots of antennae as opposed to a single one. This is a laughable claim, because the real issue is that they’re using a third-party broadcast in a service they then sell. How they do it is largely irrelevant, because the very fact that they’re doing it is the problem. The issue isn’t the number of receivers, but the man-in-the-middle, charging money for re-transmission.

  2. In file sharing cases, the plaintiffs feel empowered to raise the actions of nondefendants using file-sharing networks in their actual briefs.

    Remarkable.

  3. Devlin Hartline

    My favorite part of the Aereokiller preliminary injunction decision: “Again, the concern is with the performance of the copyrighted work, irrespective of which copy of the work the transmission is made from. Very few people gather around their oscilloscopes to admire the sinusoidal waves of a television broadcast transmission. People are interested in watching the performance of the work.” This distinction was lost on the Second Circuit in Cablevision.

    For those interested in why Cablevision got it wrong, I think Professor Malkan’s article explains it best: http://law.uoregon.edu/org/olrold/archives/89/Malkan.pdf

    He explains that the “separate places” and “different times” language in the Section 101′s “transmit clause” refers to interactive services, like video-on-demand (or like Aereo and Aereokiller). When the Second Circuit focused on who was “capable of receiving the performance,” it erroneously substituted in the word “transmission” for “performance.” This led it to conclude that each transmission was a private performance. The focus should be on who is capable of receiving the performance of the work, as Professor Malkan and as the district court in Aereokiller properly noted.

    • In contrast, my favorite part is the argument for national uniformity…precisely the opposite argument the EFF proffers in the case of patent law.

      • Devlin Hartline

        I’ve heard the grumblings about the Federal Circuit but never really understood them. I’ve been doing a lot of research lately into patent law, and I can’t tell you how nice it is to have that uniformity.