Why did we evolve to appreciate beauty? — An interesting contemplation of why we enjoy aesthetics. “It is not yet clear why adults should find perceptual play fun. Aren’t we done learning how to perceive? Everyone achieves a certain basic level of skill in characteristically human activities: walking, talking, looking, listening, and singing. We do this by pleasurable play when young, and we maintain these skills with practice well into adulthood. But with each of these activities, the human body affords us the capacity to improve – to become extraordinarily skilled.”

A ‘Crisis’ in Online Ads: One-Third of Traffic Is Bogus — This, and the fact that brands often unwittingly find themselves funding illicit filesharing sites, suggests that there is a need to improve the workings of the online advertising ecosystem.

File sharing study found invalid — Examining a study that claims filesharing actually benefited the music industry. “Dr. Ford opens with a general remark about arguments made in defense of file sharing and that “the empirical analysis in Dr. Lunney’s paper is some of the weakest in this area, and the defects in the analysis are many and varied. Indeed, Dr. Lunney’s analysis suffers from defects so severe as to render it useless for guiding public policy. Dr. Ford expresses his sentiment early on that there are too many things wrong with the study to go through them all.”

Doing nothing is not an option to stop on-line piracy — “Copyright is established in the U.S. Constitution on the theory that one obtains more goods and services when one pays for them.  Those opposed to copyright, on whatever grounds, surely bear a substantial burden in making their case.  That burden requires more than the bandying about of sweet words.  Indeed, the general principle that payment to producers encourages production, so far as I know, is not under attack in any venue except copyright.”

Earlier this month, the US Copyright Office held a two day public roundtable on the issues of orphan works and mass digitization.

During one of the panels, a brief side debate broke out over what the purpose of copyright law was—particularly, what the proper role of the public benefit is and how much weight it should be accorded.

The first participant essentially quoted the Betamax decision’s description of public benefit. 1Sony Corp v. Universal City Studios, 464 US 417, 429 (1984). There the Supreme Court said:

The copyright law, like the patent statutes, makes reward to the owner a secondary consideration… The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.

In response, a panelist refuted characterization of reward to the owner as a “secondary consideration”. Disagreement arose. A separate panelist tried to make peace by remarking that both panelists’ explanations of the public benefit come from Supreme Court opinions. Maybe this is a case of agreeing to disagree.

But consider this: the Supreme Court refuted Sony‘s description of the public benefit of copyright in the much more recent Eldred v. Ashcroft. There, the majority said:

JUSTICE STEVENS’ characterization of reward to the author as “a secondary consideration” of copyright law, understates the relationship between such rewards and the “Progress of Science.” As we have explained, “[t]he economic philosophy behind the [Copyright] [C]lause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge…. The profit motive is the engine that ensures the progress of science.” Rewarding authors for their creative labor and “promot[ing] … Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides . . . with the claims of individuals.” JUSTICE BREYER’s assertion that “copyright statutes must serve public, not private, ends,” similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.

Well sure, the copyright skeptic might respond, that’s all well and good. But the Supreme Court only has authority over the law; it’s ruminations on matters of philosophy are not binding.

But consider this: Eldred‘s description of the public benefit is, as the Court notes, a direct descendant of the justification offered by James Madison, the very drafter of the Constitution’s Copyright Clause.

The description of the public benefit in Sony, on the other hand, comes from the misquotation of a state sales tax case.

Yes, Sony directly quotes Fox Film Corp. v. Doyal, a 1932 Supreme Court case, about the “sole interest of the United States.” In Fox Film, a film company sued to prevent the state of Georgia from collecting state tax on its income from licensing films. The film company argued that copyrights are “instrumentalities” of the federal government, so any income derived from them are immune from state taxation.

The Court disagreed. The federal government doesn’t retain any possessory or ownership interest in a copyright it secures. A copyrights is not a “franchise or privilege to be exercised on behalf of the Government ” Instead, “Copyright is a right exercised by the owner during the term at his pleasure and exclusively for his own profit and forms the basis for extensive and profitable business enterprises. The advantage to the public is gained merely from the carrying out of the general policy in making such grants and not from any direct interest which the Government has in the use of the property which is the subject of the grants.”

So when the Fox Film Court speaks of “the sole interest of the United States”, it is merely making the distinction that the federal government does not retain any right or title in a copyright such that license income would be exempt from state taxation. But the Court would later take this quote out of context, 2United States v. Paramount Pictures, Inc., 334 US 131, 158 (1948). and Sony perpetuates this error. Indeed, the above quote from Fox Film about the advantage to the public is more consistent with Eldred‘s explication of the public interest than Sony‘s.

So what is the point here?

Copyright skeptics will often proclaim that copyright law must serve the public interest. But that is not controversial. Of course it should serve the public interest; all laws should serve the public interest.

What is overlooked is how copyright serves the public interest. Skeptics will focus on how exceptions to and limitations on copyright further the public interest. Missing is the inherent public interest in copyright, in preserving incentives to create and disseminate expressive works.

Like any free market, enabling a free market in creative works tends toward the public good. Copyright is the economic building block of this market, allowing voluntary transactions to occur and private ordering to emerge. It encourages investment in creating and distributing the types of works that advance society and enrich our lives, the types of works that shouldn’t be considered an afterthought.

Some will suggest that creators will create and disseminate works even without copyright protection. This counterfactual is unconvincing. That there are creators who will create and distribute their works despite adequate copyright protection is a demonstration of human resilience, not an affirmation that society can continue to benefit while artists, authors, and creators are undermined.

So yes, let us celebrate the public benefit of copyright, let us celebrate how the profit motive serves as the engine ensuring the progress of science. But let’s not confuse the short term gains of ignoring copyright with the public benefit, or focus solely on the benefits of copyright’s limitations at the expense of the public benefit of protecting creators’ rights.

References   [ + ]

1. Sony Corp v. Universal City Studios, 464 US 417, 429 (1984).
2. United States v. Paramount Pictures, Inc., 334 US 131, 158 (1948).

Not-So-Zen and the Art of Voluntary Agreements — If you haven’t already seen it, be sure to read Kurt Sutter’s essay on Google and copyright. “I’m sure Mr. and Mrs. Google are very nice people. But the big G doesn’t contribute anything to the work of creatives. Not a minute of effort or a dime of financing. Yet Google wants to take our content, devalue it, and make it available for criminals to pirate for profit.”

Copyright Holders Look for an Antipiracy DMCA Upgrade — Speaking of voluntary agreements, yesterday the USPTO held its first in a planned series of public multistakeholder forums designed to create voluntary solutions to improve the functioning of the DMCA notice and takedown process within the current statutory framework. A consensus emerged that stakeholders would begin by tackling the standardization of the process and then going from there.

Sean O’Connor: The Overlooked French Influence on the Intellectual Property Clause — Fantastic article. I’m still digesting Prof. O’Connor’s conclusions, but his stocktake on literature analyzing the interpretation of the Copyright Clause is incredibly comprehensive and should prove invaluable to anyone interested in the subject.

Court gags Dotcom bodyguard — Kim Dotcom, self-proclaimed free speech advocate, has successfully gotten a court to prohibit a former employee from speaking out in public about his time in Dotcom’s employ.

MP3Tunes Founder Michael Robertson Found Liable for Copyright Infringement — Earlier this week, YouTube and Viacom settled their long-running litigation, leaving open the question of when, if ever, a service provider could lose DMCA protection because of willful blindness. Just a day later, a jury answered: here.

Lupita Nyong’o and Celebrating Unsung Artists — “We celebrate successful artists — artists with the machinery of celebrity behind them — but how do we celebrate all of the other people who are making art each and every day? And, forget celebrating them: How do we support them? How do we make it economically viable for them to make art? We don’t. And, for the sake of our culture, we should.”

Slate’s Anti Copyright rant sounds like a letter from your psycho ex — The article insists that voluntary agreements to reduce the harms of infringement are the new SOPA, because in the two years since the bill was stopped, saying something is the new SOPA is the best strategy some copyright skeptics have been able to come up with.

Victims of IP theft need better protection — Reps. Judy Chu and Tom Marino highlight the challenges facing indie artist Christine Filipak in keeping up against the tide of infringement she faces. Just in time for yesterday’s IP Subcommittee hearing on the DMCA notice and takedown process. Along the same lines, check out Mark Schultz’s article, Time to revise the DMCA: the most antiquated part of the copyright may by one of the newest.

Transformative or just taking? Lawyers struggle to define fair use in wake of Google Books case — Report from a NYC Bar Association panel Monday featuring Judge Chin, who recently held Google Books to be a fair use, and other noted copyright lawyers and scholars.

Oakland emails give another glimpse into the Google-Military-Surveillance Complex — “The evidence was abundant and overwhelming: in email after email, Oakland officials had discussed the DAC usefulness for keeping tabs on activists, monitoring non-violent political protests and minimize port disruption due to union/labor strikes. In particular, officials wanted to use the surveillance center to monitor Occupy Wall Street-style activists, and prevent union organizing and labor strikes that might shut down the Port of Oakland. *** But buried deep in the thousands of pages of planning documents, invoices and correspondence was something that the activists either seemed to have missed or weren’t concerned by. A handful of emails revealing that representatives from Oakland had met with executives from Google to discuss a partnership between the tech giant and the DAC.”

This morning, the House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet will continue its ongoing review of the Copyright Act, focusing this time on Section 512 of Title 17, the DMCA’s notice and takedown provisions.

No doubt, copyright’s skeptics will trot out their usual line of DMCA abuse, so I thought it would be appropriate to offer my own. Here, in no particular order, are my top examples of DMCA notice and takedown abuse: sites and services which had claimed the protection of the law while receiving millions of notices of infringing content and profiting handsomely, to the detriment not just of the large copyright holders who could afford to send takedowns (and litigate if need be) but especially to the detriment of individual creators and small businesses, who effectively have no recourse:


Filelocker Hotfile was founded in 2009. By the time it was sued for copyright infringement by the major motion picture studios in 2011, it had become one of the most popular such sites. In part, this was because the site did such a good job facilitating infringement among its users—evidence showed over 90% of files downloaded through the service were infringing, and the court noted that these efforts “worked a significant financial benefit to Hotfile and its founders.”

Hotfile, of course, argued strenuously that it was operating consistent with the DMCA.

The facts showed a different story. One of the requirements for the DMCA safe harbor is that a site adopts and reasonably implements a “repeat infringer” policy, one that terminates accounts in appropriate circumstances. The court found that Hotfile was doing anything but. When the litigation began, Hotfile had received over 10 million takedown notices for infringing content on its system.  But records show that it had only ever terminated a grand total of 43 users—though 33 of those came as a result of a court order from prior litigation. Nearly twenty-five thousand Hotfile users had accumulated over three infringement notices. Over sixty of those users were sitting on at least three hundred notices.

And as proof that Hotfile could have adopted a reasonable repeat infringement policy but didn’t, and that it would make a difference, the service revamped its policy after the litigation began and almost immediately 444 of its 500 highest paid affiliates were terminated for repeated infringement. Hotfile ended up shutting its doors and settling with the motion picture studios for $80 million the day before it was set to face a jury.

It’s difficult enough for creators to detect and deter online infringement, but some bad actors use the DMCA as legal cover, window dressing that places a façade of legitimacy over plain old for-profit exploitation. The law, however, is more than just a notice-and-takedown mechanism, and services have a number of requirements they must meet to enjoy its protection.


In 2012, the US government brought criminal charges against filelocker Megaupload and seven of its officers. Like Hotfile, Megaupload argued that it was merely an innocent cloud storage provider, shielded by the DMCA, but publicly released evidence shows the site used the law as a sword, helping it rake in $150 million and causing around $500 million in damages to copyright holders.

While the government alleges Megaupload failed to meet most of the DMCA’s requirements, one policy in particular stands out as DMCA abuse. According to the Department of Justice:

If there are multiple links to a file, then any attempt by the copyright holder to terminate access to the file using the Abuse Tool or other DMCA takedown request will fail unless all of the URL links to the infringing file are known and submitted, because the file will continue to be available through any undisclosed URL links. The infringing copy of the copyrighted work, therefore, remains on the Mega Conspiracy’s systems as long as a single link remains unknown to the copyright holder. The Mega Conspiracy maintains a record of links that have been generated by the system, but duplicative links to infringing materials are neither disclosed to copyright holders, nor are they automatically disabled or deleted when a copyright holder either uses the Abuse Tool or makes a standard DMCA copyright infringement takedown request. During the course of the conspiracy, the Mega Conspiracy has received many millions of requests to remove infringing copies of copyrighted works, and yet the Mega Conspiracy has, at best, only deleted the particular URL of which the copyright holder complained, and purposefully left the actual infringing copy of the copyrighted work on the Mega Conspiracy-controlled server and any other access links completely intact.

This is a deliberate end-run around the law’s purpose of cooperation between service providers and copyright owners to detect and deter infringement. “Takedown” should mean “takedown” (ideally, it should also mean “stay down”, but that’s another story).


One of the safe harbors in the DMCA protects against liability for material stored at the direction of users. So why couldn’t you have users store music files on your servers and then provide an on-demand streaming platform with a catalog rivaling licensed music services? That’s the too-clever-by-half strategy employed by Grooveshark (along with allegations that it requires employees to upload music themselves to plug any holes). Grooveshark is currently involved in copyright infringement litigation with a number of record labels, and indie musician Erin McKeown has repeatedly called them out for their practices:

Noted copyright scholar Peter Menell has also written about the service, calling it a case study in DMCA safe harbor abuse. The “DMCA license” that services like Grooveshark believe they are entitled to under the law—where services believe it’s ok to build full-fledged content platforms without licenses so long as they “launder” the content through users—not only allows them to divert money out of the hands of musicians, but it makes it more difficult for legitimate, sustainable online platforms to grow.


At one point, IsoHunt was one of the world’s most popular BitTorrent search engines, indexing and helping users search and find torrent files—90-96% of which were infringing. As with the services above, IsoHunt claimed DMCA protection. But last year, the Ninth Circuit rejected that claim.

The primary reason was that IsoHunt was actively inducing infringement through its service:

As noted, the record is replete with instances of Fung actively encouraging infringement, by urging his users to both upload and download particular copyrighted works, providing assistance to those seeking to watch copyrighted films, and helping his users burn copyrighted material onto DVDs. The material in question was sufficiently current and wellknown that it would have been objectively obvious to a reasonable person that the material solicited and assisted was both copyrighted and not licensed to random members of the public, and that the induced use was therefore infringing.

It would seem obvious that service provider actively engaged in encouraging infringement (and, as the record showed, profiting from it) could find refuge in a statue designed to protect service providers from incidental and innocent infringement that occurs on their facilities. But that is unfortunately not always the case. The DMCA should not be so broad that it protects against deliberate infringing behavior.

Though these sites have been or are currently the subject of legal action, there are sadly far too many like them continuing to operate, hiding behind the DMCA to profit off the work of others without their permission. This abuse penalizes good faith service providers and stymies the growth of legitimate innovative services. It exploits creators—and worse, chill their ability to create and disseminate new works for the public to enjoy.

As Congress looks at the DMCA, it should look for ways to reduce the ability of bad faith actors to abuse the important protections the law provides. That would better foster the type of sustainable and innovative online creative ecosystem that the public deserves.

Last week the Supreme Court received the first round of amicus briefs in American Broadcasting Companies v. Aereo. Individuals and organizations who support the broadcasters’ position (or support neither party) filed nearly 20 briefs; in a few weeks we’ll see Aereo’s opening brief, followed a week later by amici in support of Aereo, setting the stage for oral arguments in front of the Court on April 22.

The issue in front of the Court should be familiar by now to anyone following the case, but to reiterate, it is this: does Aereo violate a copyright owner’s exclusive right to perform a work publicly?

In a series of posts, I broke down this inquiry into its component parts. First, I asked, “what is to the public“? Then I asked “what is a performance“?

Much ink has been spilled over how the Supreme Court should rule in Aereo, and my posts, concluding that, yes, Aereo does perform to the public, were no exception. The primary argument in favor of Aereo is that it is Aereo’s customers, not Aereo itself, engaged in performing broadcast television to users.

So it would seem that one question remains as to Aereo’s ultimate liability: who is the “performer”? This question is pivotal. If, as I have argued, we interpret “to the public” as requiring a look at the relationship between performer and audience, then a conclusion that it is the user engaged in performing would mean the performance is private, since a user-to-user performance is undoubtedly private. But if Aereo is the performer, the opposite conclusion seems required, since the relationship between Aereo, Inc. and its paying subscribers is very likely a public one. In other words, the latter involves direct liability for copyright infringement while the former does not.

But rather than attempting to answer this question here and now, I want to reframe it. Specifically, I want to suggest that the question of who “performs” a work is not a copyright question.

That does not mean it is any less valid of a question. It just means it is a question involving legal doctrines besides copyright law. If the argument, for example, is that Aereo is merely renting equipment to users to engage in otherwise legal actions, than the question is whether this is actually what is happening (and not just legal sleight of hand) and whether the agreement between Aereo and the user is sufficient to shift liability from Aereo onto the user. This involves questions of contract and tort rather than copyright.

Indeed, tort law provides a diverse array of doctrines that can be called upon to answer who a “performer” is: ideas such as proximate causation, agency, and perhaps even bailment.

The answer does not, however, come from the Copyright Act.

What is the import of this claim? For one, it means that it is not necessary to torture the text of the Copyright Act to reach a conclusion that it is a user of Aereo rather than Aereo who is performing a work. The text of the Transmit Clause is straightfoward: one performs a work publicly if they transmit a performance of the work to the public, by means of any device or process. Only the most baffling interpretations can make “by means of any device or process” mean “by means of any device or process… except 1,000 antennas” or “by means of any device or process… except 10,000 antennas.”

It also means the legislative history of the public performance provisions in the 1976 Copyright Act are of no help. In fact, the legislative history compels the conclusion that the Copyright Act is the wrong place to turn to for answering who the “performer” is.

In 1965, the Register of Copyrights released a report on the current version of the Copyright Act, one in which the public performance provisions were substantially the same as those that would eventually become law. In the report, the Register noted that Congress “adopted the approach, like that taken in foreign laws, of stating the public performance right in broad terms in section 106, and of providing the specific exemptions for educational and other nonprofit uses in section 109.” 1U.S. Copyright Office, Supplementary Register’s Report on the General Revision of the U.S. Copyright Law (1965),

It signals this breadth through its explanations of the definition for performances in the draft revision:

A work may be performed ”either directly or by means of any device or process,” and these devices or processes would encompass sound or visual reproduction equipment of all kinds, amplifying systems, radio and television transmitting and receiving apparatus, electronic retrieval devices, and a host of other techniques, undoubtedly including some not invented yet. 2Id.

It goes on to state that the language adopted was intended to cover all commercial providers of copyrighted broadcasts except for explicitly provided exceptions:

The bill does not exempt community antennas and other commercial systems that retransmit broadcasts of copyrighted material to the public. It would, however, under section 109(5), exempt operators of nonprofit “boosters” or “translators” who retransmit, “without altering or adding to the content of the original transmission, without any purpose of direct or indirect commercial advantage, and without charge to the recipients.”

So there is no mistake, the report explains just how broadly the language of the Copyright Act should be read, including the note that a specific exception for “common carriers” was considered and rejected.

We have therefore adopted the phrase “transmit or otherwise communicate * * * to the public” to cover every method by which the images or sounds comprising a performance or exhibition can be picked up and conveyed to the public. This concept would include, among other things: direct amplification (as over a loud speaker system); transmission over wires or other connections; wireless transmission by the originating transmitter and by any other transmitter who picks up his signals and passes them on; and further transmission, over wires, of a wireless transmission. Likewise, although probably also covered under clause (A), it would include performances in public places resulting from the playing of records on jukeboxes and other sound reproducing equipment and from the reception of wired or wireless transmissions.

In effect, the definition is intended to cover every transmission, retransmission, or other communication of a performance which reaches “the public.” The 1964 bill contained language exempting transmissions by someone acting, “as a common carrier,” the thought being that a corporation merely leasing wires or equipment for the intermediate transmission of signals to other transmitters, rather than to the public, should not be subjected to liability to the copyright owner. It was pointed out that the concept of “common carrier” might be extended unjustifiably to some commercial transmitters to the public, and we have therefore dropped this exception as ill-advised. We are convinced that purely intermediate transmissions should be exempt, but that an express exemption is not necessary to exclude them.

There is further evidence that Congress did not intend for the language of the public performance provisions to explain the distinction between cable services and antenna rental services. For example, following the district court’s decision in United Artists Television v. Fortnightly Corporation, 3255 F. Supp. 177 (SDNY 1966). which found the operator of a community antenna television service liable for publicly performing copyrighted works, a bill was introduced that would establish three categories of liability: CATV operators would not be liable for providing access to broadcasts within the broadcast area. Liability would attach where a CATV operator provided access to distant broadcast signals, and a reasonable license fee would be required where CATV services brought outside signals when local viewers were not “adequately served” by three major networks. CATV operators rejected this approach. 4Judith E. Ciani, CATV and Copyright Infringement, 10 B.C.L. Rev. 459, 471-72 (1969).

The Supreme Court eventually reversed in Fortnightly, holding that a CATV operator does not perform television broadcasts; instead, its “basic function the equipment serves is little different from that served by the equipment generally furnished by a television viewer.” 5Fortnightly Corp. v. United Artists Television, Inc., 392 US 390 (1968). So we know that the idea of a distinction between a service performing a work publicly and a service allowing an individual to perform a work privately was on Congress’s radar during the revision process. But it declined to insert any language that could potentially mediate that distinction. Rather, the public performance provisions would include all third parties, and “cover every transmission, retransmission, or other communication of a performance which reaches ”the public,” no matter how closely they resemble a mere provider of equipment for a user. 6Supplementary Report, supra.

To say otherwise, to suggest that language in the Copyright Act itself guides us to distinguish between a transmitter of performances and a mere passive device or process is supported by zero evidence. To say, after this clear and convincing evidence, that Congress drafted statutory language that would distinguish between companies performing a work to the public and companies merely providing facilities allowing members of the public to perform a work to themselves is untenable. Nothing in the final text of the provisions indicates that Congress intended this distinction, and nothing in the legislative history suggests that it buried such a distinction in the language, to await a clever lawyer to tease it out.

And this isn’t the case that Congress wasn’t aware of an argument that a service could argue it is just doing what users could otherwise do themselves. It heard that argument repeatedly.

Congress heard the argument that CATV equipment was “not owned by the CATV system but by the system’s individual subscribers.” 7Statement of Louis Nizer, representing producers and distributors of copyrighted television film programs, Copyright Law Revision, Hearings before Subcommittee No. 3, pg. 1359, Serial No. 8 (1966). Congress heard CATV operators argue that “Because CATV systems are functionally identical to rooftop antennas on private homes, broadcasters deserve no greater exclusivity than they would obtain if everyone chose to install a private rooftop antenna adequate to receive the available signals.” 8Id. at 1298. Congress heard that “CATV is not a passive rooftop or ‘rabbit-ear’ antenna.” 9Statement of Arthur B. Krim, Hearings before Senate Judiciary IP Subcommittee on S.1006 at 170 (1966). CATV proponents argued to Congress that CATV is simply an “aid in reception of television broadcast signals”. 10Fn. 7 at 1330.

And, driving home the point that this is not an issue of the Copyright Act being inadequate to deal with current technological challenges, the president of the NCTA argued nearly half a century ago that “The conventional way in which a viewer obtains programs is by buying his own set, installing his own antenna, and then enjoying the program. But the viewer may resort to other methods to enjoy his local station. If, instead of buying his set outright, the viewer chose to rent it from a company which agreed to keep it in good condition, there would be no reason in policy or logic why this act should bring into play different copyright consequences from those which obtain when the viewer owns his set outright.” 11Id. at 103.

Congress explicitly rejected—decades ago—the arguments Aereo and its supporters are currently making. As noted above, it ultimately settled on a broad statute that does not make the distinctions CATV proponents sought.

But, before consumer electronic advocates’ heads explode, I want to reiterate that this does not mean Aereo or similar services are necessarily liable for copyright infringement. It merely means that any possible salvation does not lie in the Copyright Act but in some other legal doctrine, whether through contract, tort, or otherwise.

General copyright principles would certainly inform the application of these legal doctrines, and the statutory text may serve as a guide, but the language itself does not answer the question of who is the “performer”.

So the Supreme Court’s job is clear. Assuming that Aereo is the performer, since that issue is not in front of the Court, 12And was not foreclosed by Cablevision in 2008. Cartoon Network LP v. CSC Holdings, 536 F. 3d 121, 134 (2nd Cir. 2008) (“We need not address Cablevision’s” argument “that (1) the RS-DVR customer, rather than Cablevision, does the transmitting and thus the performing”). it plainly is performing “to the public” because it is transmitting works using any device or process to individual subscribers that it has a public relationship with.

(I personally think proximate causation can play a critical role in the distinction discussed here and hope to explore this more fully in a future post.)

Thanks to Devlin Hartline for valuable feedback during the drafting process!

References   [ + ]

1. U.S. Copyright Office, Supplementary Register’s Report on the General Revision of the U.S. Copyright Law (1965),
2. Id.
3. 255 F. Supp. 177 (SDNY 1966).
4. Judith E. Ciani, CATV and Copyright Infringement, 10 B.C.L. Rev. 459, 471-72 (1969).
5. Fortnightly Corp. v. United Artists Television, Inc., 392 US 390 (1968).
6. Supplementary Report, supra.
7. Statement of Louis Nizer, representing producers and distributors of copyrighted television film programs, Copyright Law Revision, Hearings before Subcommittee No. 3, pg. 1359, Serial No. 8 (1966).
8. Id. at 1298.
9. Statement of Arthur B. Krim, Hearings before Senate Judiciary IP Subcommittee on S.1006 at 170 (1966).
10. Fn. 7 at 1330.
11. Id. at 103.
12. And was not foreclosed by Cablevision in 2008. Cartoon Network LP v. CSC Holdings, 536 F. 3d 121, 134 (2nd Cir. 2008) (“We need not address Cablevision’s” argument “that (1) the RS-DVR customer, rather than Cablevision, does the transmitting and thus the performing”).

A Plea about Arts Piracy in the Theater — This week’s must read. “To put it another way, playwrights will only generate new plays insofar as they can afford to keep doing it, and only insofar as they know that the community is protecting their work even when they’re not around to police it.”

Copyright experts side with broadcasters in Aereo fight — This week, amici supporting broadcasters in ABC v. Aereo filed their briefs at the Supreme Court. Included among them was this one by copyright scholars David Nimmer and Peter Menell. Be sure to also check out the solidly written and well-reasoned brief from the US Copyright Office and DOJ as well as one taking the international perspective from a whopping 15 separate creative associations and eight IP scholars.

Guest post: Copyright’s Public Performance Right, Cable Television, and Aereo — Speaking of Peter Menell, I was delighted to see him contribute a version of his amicus brief argument to the Copyright Alliance’s blog.

Google Judge to Rule on Media Access to Documents after March 7 — Google is currently facing claims that it illegally accessed private emails. While the First Amendment normally requires court records be publicly accessible, Google has moved to seal certain documents filed in the lawsuit, arguing, in part, that “public disclosure of the Sealable Information would cause Google significant economic harm by revealing sensitive aspects of Google’s proprietary systems and internal decision-making processes to Google’s competitors, depriving Google of competitive advantages it has earned through years of innovation.” A group of media companies and organizations have intervened to oppose Google’s motion, a ruling of which can come as early as today.

Welcome to Googletown — This week’s feel good read.

The Oscar Selfie: Why Copyright Analysis Should Be Left To Copyright Lawyers — Some great perspective from Paul Fakler following the rash of silly and unnecessary copyright analysis of Ellen DeGeneres’ record-setting #selfie from Sunday’s Academy Awards. Speaking of which, The Ellen Selfie Was TV’s Victory, Not Twitter’s. “The Hollywood selfie seems like a giant business coup for ad-reliant Twitter, but it says more about the power of a century-old technology than anything else.”

Washington Attorney General Hits Cyberlocker for “Deceptive Practices” — An interesting new front opens in the fight against commercial exploitation of creators. According to Torrentfreak, “the AGO says that by failing to inform users that some of the content available from UMB may be copyrighted, UMB had engaged in ‘deceptive business practices’ contrary to the Consumer Protection Act. Furthermore, the AGO said that by charging a subscription fee to use the service, UMB had been ‘implicitly leading members to believe’ they were accessing content legally, something that was likely to confuse customers and lead them to unwittingly break the law.”

We’re being screwed by Spotify! David Byrne, R.E.M.’s Mike Mills and Cake’s John McCrea on the fight for artists’ rights — Cake frontman John McCrea speaks to Spotify about the reemerging artist rights movement.

The Echo Nest is Joining Spotify: What it Means to Me, and to Developers — “Today, we’ve announced that The Echo Nest has been acquired by Spotify, the award-winning digital music service. As part of Spotify, The Echo Nest will use our deep understanding of music to give Spotify listeners the best possible personalized music listening experience. Spotify has long been committed to fostering a music app developer ecosystem. They have a number of APIs for creating apps on the web, on mobile devices, and within the Spotify application. They’ve been a sponsor and active participant in Music Hack Days for years now. Developers love Spotify, because it makes it easy to add music to an app without any licensing fuss. It has an incredibly huge music catalog that is available in countries around the world. “