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.”1

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.2

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,3 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.4

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.”5 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.6

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.”7 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.”8 Congress heard that “CATV is not a passive rooftop or ‘rabbit-ear’ antenna.”9 CATV proponents argued to Congress that CATV is simply an “aid in reception of television broadcast signals”.10

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.”11

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,12 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!

Footnotes

  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”). []

Share: Reddit Google+ LinkedIn

15 Comments

  1. Terry, I have difficulty following your logic here in many regards. First, while you start out proposing that the determination of who the performer is lies outside of copyright, and that the legislative history of the 1976 Copyright Act is no help, you proceed to spend no time at all examining the question of who the performer is, instead, spending the vast majority of the post discussing the legislative history of the 1976 Copyright Act.

    Then, your discussion of the legislative history repeatedly consists of excerpting a very short quote, followed by your own commentary that doesn’t follow from that quote. Honestly, in some cases I couldn’t say whether you actually have a valid point, or not, because you simply haven’t provided sufficient basis in the legislative history for us to evaluate such. In other cases, you clearly draw inferences that simply aren’t supported by what you cite.

    One also needs to recognize the limitations of examining a legislative history stretching back more than a decade (to, in fact, a different Congress) before adoption of the actual law. In no case can we elevate the legislative history above the statute, itself. So when, for example, in your only extensive excerpt, you argue that a specific exemption for common carriers was considered and rejected, that bit of history is dwarfed by the fact that the Copyright Act ultimately did include an express exemption for such carriers, at 111(a)(3). (And this is not to mention the fact that the very excerpt you provide emphasizes Congress’ belief that such transmissions would be exempt, even absent an express exemption. In fact, this excerpt would seem to call into question repeated assertions you and Devlin have made, respecting the proper interpretation of the scope of the law.)

    But let’s take a look at some of your other claims regarding the legislative history, where you haven’t provided us with history that actually supports your stated inferences.

    You say:

    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.

    and later:

    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.

    but nothing you say between those statements mentions the notion of antenna rental, in any way. So it’s hard to understand how you believe that we are to draw any inferences about such, at all.

    You expend considerable effort noting that cable operators of the past argued the functional equivalence of CATV reception to private reception — but it’s not clear why you think this is relevant. No serious commentator is arguing that Aereo system is legal because of a functional equivalence to private reception. Rather, they argue it is legal because (unlike CATV systems of the past or present) it is private reception.

    You include an excerpt of the NCTA arguing that it is equally legal for a consumer to receive broadcast signals using a rented television as a purchased television. But you neglect to acknowledge that it is equally legal to use a rented television — just as it is equally legal to use a rented antenna!

    In short, you are arguing that Congress rejected the analogy between a cable system and home reception, or even to home reception using rented equipment. But since the argument for Aereo’s legality is not an argument by analogy, this is simply irrelevant.

    In ending your post, you make a statement that I don’t follow — that the issue of “who is the performer” is not before the court, and so Aereo is presumed the performer. Yet, as you note with respect to Cablevision, and as Devlin and I discussed at length elsewhere, the Second Circuit never reached any conclusion as to whom the performer was, in either Cablevision or Aereo. Accordingly, I don’t follow why there would be a presumption that Aereo is the performer, or why you believe that the Court is not at liberty to address this question.

     

    Finally, stepping away from interpretation of law…after having discussed this issue at such great length for nearly two months now, I can’t help but share a (legally irrelevant) observation regarding the propriety of the law we have been discussing.

    The specific change of copyright law to encompass a performance right rendering cable retransmissions of broadcast signals an infringement represents a perversion of the constitutional basis for copyright. It is part of what is now a persistent pattern of such perversions, but it arguably represents one of the earliest and most important instances of a major corporate power broker of the day (broadcasters) prevailing upon Congress to modify copyright law for the sole purpose of increasing their profits, rather than any actual social benefit (as the Constitution specifies is the actual purpose of copyright, and all intellectual property law), and arguably at the expense of such.

    After all, cable retransmissions did not, in any way, harm the broadcasters’ ability to profit from their work. Quite to the contrary, since broadcasters made their money by selling advertising, cable retransmissions actually served to increase broadcaster profits, by increasing their audience size. (And what’s more, broadcasters had expressly agreed to provide their signal to the public at no charge, in exchange for being given the public spectrum they used for such, for free.)

    The broadcaster view, however, was that they enjoyed some kind of moral right to any and all profits emanating from their product.

    This is simply not how copyright was intended to work:

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

    This is what the Constitution says in authorizing copyright, and all intellectual property law. The purpose of copyright is to promote progress in science and art. It is not born of any intrinsic right of authors to enjoy exhaustive control of their work and profits derived from it. Rather, it is a means to an end of benefiting society.

    By now, copyright law has been nearly-fully harnessed and perverted by corporate power brokers, to not merely provide an effective incentive for the creation of creative works, but to serve their personal proprietary interests, at the cost of all others — even reaching the point, with provisions of DMCA, where it would purport to impinge upon fundamental individual constitutional liberties.

    And of course, broadcasters ultimately weren’t satisfied to merely receive a small cut of cable revenues via a compulsory license, and a decade and a half later, prevailed upon Congress to enable them to extract however much they wished, via retransmission consent. That change in the law begat two decades of massive, hyperinflationary increases in cable bills, despite the development of robust satellite, and more recently telco, competition.

    It is this very highly-negative societal impact of repeated and increasingly-perverted modifications to the law that brought the likes of Aereo into existence, to begin with.

    This says nothing to illuminate what the law does or doesn’t say with respect to Aereo, but as this issue is argued to death, I couldn’t help but finally make note of the historical and ethical context that this all plays out in.

    • This is what the Constitution says in authorizing copyright, and all intellectual property law. The purpose of copyright is to promote progress in science and art. It is not born of any intrinsic right of authors to enjoy exhaustive control of their work and profits derived from it. Rather, it is a means to an end of benefiting society.

      By now, copyright law has been nearly-fully harnessed and perverted by corporate power brokers, to not merely provide an effective incentive for the creation of creative works, but to serve their personal proprietary interests, at the cost of all others — even reaching the point, with provisions of DMCA, where it would purport to impinge upon fundamental individual constitutional liberties/

      I think that’s a narrow view of copyright. There are many, myself included, who do not view “to promote the progress” as anything more than preambular language that provides no substantive limitation on Congress’ power to enact copyright laws. While promoting progress is certainly the purpose of copyright, that purpose doesn’t limit what Congress can do since Congress gets to decide what it thinks promotes progress in the first place. The power—and the limitations on that power—come in the second half of the Copyright Clause. Moreover, there are many, myself included, who do not think that utilitarianism provides an adequate foundation for copyright. Utilitarianism can suggest the ways to implement copyright, but it doesn’t tell us why we want copyright in the first place. Other philosophies, such as the Lockean one you reject, provide a much better foundation, IMO. I don’t mean to start a big debate with this. I’m merely pointing out that there a plurality of views about what the Copyright Clause means, and none of them are necessarily “right.”

      I am curious though as to what you mean about the DMCA impinging on constitutional liberties. Could you expand that a bit?

      • While I certainly would agree that Congress has been, and will be, afforded tremendous latitude in interpreting the scope of their power under this clause, themselves, I don’t believe that there’s a good argument that the initial phrase is merely preambular. The explicit limitation of the power to securing rights for “limited Times” makes clear that, from a constitutional perspective, the granting of rights is part of an explicit social tradeoff: granting rights for a limited time, in order to incentivize innovation and creation that society benefits from. These rights are granted (not recognized as if they were inherent rights) because they serve a social purpose. And they are limited (rather than permanent, as would ordinarily be the case with inherent rights, such as ordinary property rights), because that granting of rights is a tradeoff, and attaining the full social value can only occur if those rights expire after a reasonably limited period. (And for the record, after seemingly interminable extensions, its hard to argue that current copyright terms are even remotely reasonable in their “limited” lengths.)

        The importance, and in fact, intrinsic nature, of this tradeoff is more obvious with patent law than copyright — where the government grants inventors rights to prohibit even other completely independent inventors from using their own inventions. But ultimately, it is quite important in copyright law, as well. (See http://www.thepublicdomain.org/ for further discussion.) And the fact that the power to enact laws relating to both copyright and patents is a single power, authorized in a single clause, makes clear that copyright was viewed by the framers in the same utilitarian light as patents.

        And for the record, I don’t wholly reject a Lockean notion that individuals ought to enjoy the fruits of their labor. Rather, I merely recognize that such is subordinate to the utilitarian, as you call it, concerns of balancing social benefit. Individuals ought to enjoy the fruits of their labor sufficiently to unquestionably motivate such. But when arguments extend (typically, implicitly) to the point where these individuals are treated as inherently entitled to an unlimited and exclusive enjoyment of all possible fruits of their labor, that’s simply not justified by the Constitutional basis for intellectual property.

        As for DMCA, the anti-circumvention provisions are well known to have been used to attempt to impinge upon constitutionally-protected expression in a variety of ways, including having been used to threaten and attempt to chill work conducted by eminent scholarly researchers. See, for example, https://www.eff.org/wp/unintended-consequences-under-dmca . (Provisions enabling periodic administrative establishment of exemptions are cold comfort. Fundamental liberties should not be subject to the vagaries of such processes, or have to wait for them to become effective.)

        • The “limited times” limitation, as well as the limitations implicit in the words “authors” and “writings,” all come from the second half of the Copyright Clause. I don’t deny that one could challenge a copyright law under the “to promote the progress” part, i.e., the first half of the Clause, but a court reviewing such a challenge would apply only mere rational basis scrutiny–the most deferential review possible. So long as there is some rational reason for the law (and rational doesn’t even mean reasonable), it will be upheld. This reason wouldn’t even have to be the one that any member of Congress held when passing the law, and it can even be cooked up post hoc. That’s not a real limitation, IMO. Congress’ power under the Copyright Clause is essentially plenary, and the idea that courts will second-guess what promotes progress is unrealistic.

          As far as utilitarianism goes, I just don’t see how it’s possible to do the sort of cost-benefit analysis necessary to decide if we want copyright in the first place. Once you get into the details of what factors should be measured and how they should be weighed together, you’re forced to answer the sorts of icky questions the utilitarian model purports to make irrelevant. I think the whole “just look at the data” argument is circular since you can’t decide how to gather or look at the data until you decide what’s important–and that requires considerations such as moral desert and personal dignity, among others. I totally agree that copyright is about balances and trade-offs, but I just don’t think that explains why we want copyright in the first place. You use those trade-offs to shape copyright policy, but those trade-offs don’t tell us why we secure (the Copyright Clause says “secure,” mind you, not “grant”) copyright rights to authors. Personally, I think the Framers were clearly concerned about both authors and the public, and I think they embraced both natural law and utilitarianism.

          As far as the DMCA impinging on freedom of expression goes, I should have clarified my question: Do you think it does so unconstitutionally, or do you think the impingement is constitutionally permissible? Sorry I wasn’t more precise.

          • Devlin–
            Well, don’t forget that the clause was written in 18th century English, and that ours is a hell of a mutable language.

            The OED has a number of definitions for secure which would’ve been in use at the time.

            Among these are:

            To make a tenure (of a property, office, privilege, etc.) secure or certain to pass to a person.

            To make sure that (a person) obtains something.

            And my favorite:

            To fence off; to enclose by or with a barrier.

            I like that last one a lot because it immediately harkens back to the enclosure movement, which as you’ll recall involved the state taking property which was held in common and granting it to particular landholders exclusively. The parallels with copyright are eerie.

            So the idea that secure is equivalent to grant is more well founded than you may have thought.

          • I like that last one a lot because it immediately harkens back to the enclosure movement, which as you’ll recall involved the state taking property which was held in common and granting it to particular landholders exclusively. The parallels with copyright are eerie.

            So the idea that secure is equivalent to grant is more well founded than you may have thought.

            I like your OED counterargument, and I don’t put much weight on the “secure” argument–though I’ve seen some decent defenses of it that I think are more persuasive than picking our favorite meaning out of a dictionary. Regardless, I’m just not seeing how copyright (intangible and nonrivalrous) takes from the commons like granting land (tangible and rivalrous) does. Where’s the eerie parallels?

          • Devlin, I think you must have overlooked the first and last paragraphs of my commentary on the Constitutional basis of copyright. I started out by saying:

            …stepping away from interpretation of law…I can’t help but share a (legally irrelevant) observation regarding the propriety of the law we have been discussing.

            And I ended by saying:

            This says nothing to illuminate what the law does or doesn’t say with respect to Aereo, but as this issue is argued to death, I couldn’t help but finally make note of the historical and ethical context that this all plays out in.

            I thought I was making it very clear that I was not attempting to make a legal argument by these comments.

            Rather I was making an observation as to how copyright law has departed quite far from what the historical basis for it was. And I don’t think that historical basis is really subject to serious debate. It’s not only clear from the text of the constitutional clause, itself, but a history that stretches back considerably further than that formulation within the States.

            And if it weren’t as I indicated, then there would be a real philosophical problem with the fact that the Constitution allows Congress virtually unbridled authority to choose whether, how and what intellectual property to protect. After all, we are not a communist society. We generally do not subject inherent rights to the unfettered whims of Congress. Even without the historical context or an analysis of the specific text of the clause, the very fact that it was deemed appropriate to give Congress such sweeping discretion in protecting, or not protecting, creative and inventive works demonstrates that such protection arises from a utilitarian-oriented philosophy whereby such protections are seen as a man-made right created for the purpose of maximizing societal good, rather than a philosophy that authors and inventors are inherently entitled to exclusive rights. Intellectual property rights pretty clearly are not what the framers would have classified as rights “endowed by their Creator.”

            As for DMCA, my view is that the impingement in not constitutional, which is why I used the word “purport.”

          • Devlin–
            “Regardless, I’m just not seeing how copyright (intangible and nonrivalrous) takes from the commons like granting land (tangible and rivalrous) does. Where’s the eerie parallels?”

            I think you’re badly confusing copyrights with works, there.

            Remember, a creative work, such as a story, is intangible and nonrivalrous. Works are fixed into copies, which are tangible and rivalrous. And copyrights are a third thing, intangible but rivalrous rights which pertain to works, but are nonetheless separate. And copyrights are rivalrous: if you hold a copyright, you have a right to exclude others. But if you and I jointly hold the copyright, your right to exclude is limited in that you can’t exclude me, and you can’t exclude anyone I license or assign rights to, etc. We’re accountable to one another for profits, but that’s about it. And of course, copyrights can be assigned away, and can then even be enforced against the assignor. So I think the rivalrous nature of copyrights, as distinguished from works, should be pretty clear by now.

            In any case, the parallels:

            But for copyright, works would all be in the public domain, held in common for the benefit of all. The works are inherently, as you now know, nonrivalrous (their intangibility is not of particular importance here). Copyrights are like the fences used to enclose, in the process introducing an artificial form of rivalry as to the right to exclude, as discussed above. Where once people could use works freely, now they often must obtain permission, which more likely than not comes at a cost.

            James Boyle at Duke wrote a good piece discussing this, which can be found here: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1273&context=lcp

      • Devlin–
        Well, I have to disagree with you there. Utilitarianism offers a perfectly good explanation of why we might or might not want copyright, and what the shape of that copyright might be: because it is more useful to all than some other alternative, as measured by the number of published works in existence, and the lack of restrictions on the free use of those works by anyone who wishes to do so.

        What’s mainly interesting about copyright is that by the time the idea was concocted and put into practice, utilitarianism was also being recognized as an interesting idea which, at least in certain contexts, was found to have developed naturally or was worth instituting. For example, the old ideas of real property as being tied up in some sort of divine mandate could be tossed into the dustbin of history as we found that it really had a much more utilitarian nature to it. And it’s to this dustbin that we must also consign Locke, or perhaps midden would be a better word, because Locke is really just crap so far as copyright goes. Locke’s theory doesn’t explain why we have what we have, and doesn’t offer a good rationale for why the embarrassment of copyright should be tolerated.

        However, if your tastes do run that way, and who am I to judge, then let me remind you that Locke does not grant absolute dominion over works to their authors. Locke was very much against waste; if you grew a field of grapes, while your labor might provide a rationale for rights in them, if you allowed them to rot on the vine, Locke would find that you have failed in the obligations which came with your rights. You’re only entitled to rights over as much property as you can use, leaving any remainder to others, as it would be more than your rightful share.

        The broadcasters who broadcast tv over the air are freely giving their signal away to anyone in the broadcast area to receive and enjoy. If someone in that area is nevertheless unable to pick up the signal, say because of an inconveniently located hill, or interference from localized RF sources or reflectors, or because they live in a basement apartment and their landlord refuses to let them put up an aerial on the roof, the portion of the signal that the broadcaster chose to transmit, but which was not received, has been wasted. While I care not a fig for what Locke would have to say about that or any other copyright matter, I think he would side with Aereo in such cases, as they are helping to reduce waste.

        • Thanks for the comment. I’m curious whether you think Locke provides an adequate foundation for tangible property. As far as waste goes, I’m not sure I understand how that applies to copyright. Locke was concerned with people taking more than they could use since it depleted the commons, but copyright doesn’t deplete the commons since, as you know, copyright is intangible and nonconsumptive. If we liken the public domain to the commons, then my use of public domain materials in creating my work doesn’t take those materials from the commons, and others are free to use them. Moreover, once my copyright expires, my work enters the public domain and adds to the commons. So I’m not seeing how copyright causes waste. It seems to do the opposite. Regardless, I don’t think your waste argument as applied to Aereo is very persuasive. It boils down to saying that since they could have received it for free, it’s wasteful to not let Aereo sell it to them. But I don’t see how it is wasteful in the Lockean sense since, again, we’re talking about intangibles. It’s not analogous to a field of rotting fruit or anything like that. Expressions of ideas neither rot nor perish.

      • Devlin, you might want to prod Terry. My response from yesterday is still awaiting moderation. (I presume because it included two links.)

        • I think “Anonymous” and “J.S. Greenfield” should jump in the sea. They ignore the facts of law that I present, abusing knowledge to keep theft for free. Well, shows over, you can riot in the streets as shutdown Groikster refugees for a while, but then you’ll have to pay like everyone else. Thanks.

        • Devlin, you might want to prod Terry. My response from yesterday is still awaiting moderation. (I presume because it included two links.)

          I think it posted, assuming you’re referring to the comment just above stamped “March 12, 2014 at 12:14 pm.” I think there is a moderation queue here for first-time commentators and comments with two or more links, but I’m not exactly sure how Terry has it set.

    • J. Greenfield,

      You wrote: This is what the Constitution says in authorizing copyright, and all intellectual property law. The purpose of copyright is to promote progress in science and art. It is not born of any intrinsic right of authors to enjoy exhaustive control of their work and profits derived from it. Rather, it is a means to an end of benefiting society.

      Incorrect. 1:8:8 of the US Constitution’s purpose of copyright is Congress to SECURE THE EXCLUSIVE RIGHT to promote one’s creation for progress in science and art. The Aereo argument to intercept copyrights for a secondary distribution, claiming some loophole in copyright law exists so that it doesn’t have to be secured, fails. Re-state your opinion with “securing the exclusive right” for progress before intercepting one’s creation. Thanks.

      • I agree that the use of the word “secure” connotes something different than, say, “grant.” I don’t think the theory that the Framers rejected natural law completely is particularly persuasive, and this is certainly one of the reasons why I think that.