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. 1See, for example, the EFF/PK amicus brief in AP v. Meltwater and the EFF/PK amicus brief in WNET v. Aereo. 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. 2ABC v. Aereo, 874 F.Supp. 2d 373 (SDNY 2012; see Aereo takes its tiny antennas to Opposite Town.
In both Aereo and Aereokiller, 3Both companies have since sued each other for trademark infringement, adding to the drama. 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. 4Aereo 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. 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.” 5eBay v. MercExchange, 547 US 388, 391 (2006).
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.” 6It’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. 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.”
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. 7I’ve previously discussed this in A Story of John and Jack and 100 Years of Copyright and Disruptive Technology. 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. 8Sec. 1(e). 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; 9See 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). 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. 10See, for example, Breaking Bad, Mad Men, Louie, the Walking Dead, etc.
Hopefully, the 9th Circuit recognizes the EFF’s argument for the silliness it is.
|↑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.|
|↑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.|