Cross-posted on the Law Theories blog.

The cloud took center stage at the oral argument in the Aereo appeal before the Supreme Court this past Tuesday. Several justices expressed concern over how Aereo’s service can be distinguished from a cloud storage service. As they had argued in their reply brief, the petitioners, represented by Paul D. Clement, note that there’s a difference between a service that allows its users to store and access the content they already possess and a service that supplies the content to its users in the first instance. Clement argues that this distinction flows from the “to the public” language of the Transmit Clause:

Here, I think the ultimate statutory text that allows you to differentiate a cloud locker storage from something like what Aereo does is a language to the public. And I do think that in all sorts of places, including the real world, there’s a fundamental difference between a service that allows – that provides new content to all sorts of end-users, essentially any paying stranger, and a service that provides a locker, a storage service.

And I think if you want a real world analogy off of the Internet, I think it’s the basic decision – the difference between a car dealer and a valet parking service. I mean, if you look at it from 30,000 feet, you might think, hey, both of these things provide cars to the public. But if you looked at it more closely, you’d understand, well, if I show up at the car dealership without a car, I’m going to be able to get a car. If I show up at the valet parking service and I don’t own a car, it’s not going to end well for me. . . .

I think there is a very real way in which you would say, you know, at the end of the day, the car dealer’s providing cars to the public, the valet parking service is not. It’s providing a parking service.

Clement’s “real world analogy” looks at the difference between a car dealer and a valet service. He argues that Aereo is like a car dealer because people go there to obtain a car in the first instance. It’s not like a valet service, where you can only get back the car you dropped off. What makes Aereo different than a cloud storage service like Dropbox is that Aereo supplies the content to its users in the first instance. You don’t go to Aereo to park the car you already own; you go to Aereo to buy the car.

Clement argues that whether a transmission is “to the public” turns on who supplies the content:

If all they can do is, just like the valet car parking service, is get back what they put up there, I think you could easily say that that is not to the public. And that is not just me coming up with a clever distinction. That’s the distinction that’s really been drawn in the real world, because not all cloud computing is created equal, and there are some cloud computing services that use cloud computing technology to get new content to people that don’t have it, and they get licenses. And there is other cloud computing that just has locker services and they don’t think they need a license . . . .

This tracks my own argument, and I think it’s a reasonable line to draw—one that has indeed “really been drawn in the real world.” As I mentioned in my last post, the norm is that a service that supplies the content to members of the public in the first instance—whether by public distribution as with iTunes, by public performance as with Spotify, or by public display as with Westlaw—obtains a license to supply this content. The reason the service needs this license is because the content it supplies is being transferred “to the public” in the first instance, thus making it the quintessential public distribution, performance, or display.

These three exclusive rights (public distribution, performance, and display) are all related in that they make directly liable anyone who supplies the content “to the public” in the first instance. All three rights involve transferring the content from the transferor to the transferee where the relationship between the two is a public one. At the end of the transfer, the transferee obtains the content in the first instance, that is, the content in which the transferee has no prior possessory interest. Without a license (or some other defense), the transferor has violated one or more of the copyright owner’s three exclusive rights to supply the content “to the public” in the first instance.

And this is the difference Clement is talking about. A cloud storage service does not supply the content “to the public” in the first instance. Members of the public use a cloud storage service to store and access the content they already have a possessory interest in. It’s the difference between a library, which publicly distributes a book that it lends out, and a safety deposit box, where I can store a book that I already possess for safekeeping. If I later go to the bank to retrieve the book from my safety deposit box, the bank is not publicly distributing the book. The bank instead is my bailee, and I am merely retrieving my property as a bailor. The relationship, in other words, is one of bailment.

This same distinction based on who supplies the content was invoked by Deputy Solicitor General Malcolm L. Stewart, arguing on the government’s behalf as an amicus curiae in support of the petitioners:

The second thing that I would like to reinforce in Mr. Clement’s presentation is that there is no reason that a decision in this case should imperil cloud locker services generally . . . .

[T]here are obviously services that provide television programming over the Internet. Some of them are licensed because they recognize that they are publicly performing. If a particular company, for instance, recorded television programs and offered to stream them to anyone who paid the fee or offered to stream them for free and make its money off advertising, that would be a public performance because those companies would be providing content to people who didn’t have it.

I think the basic distinction, the one that at least defines the extremes, is the distinction between the company, whether it be Internet-based or a cable transmitter, that provides content in the first instance and the company that provides consumers with access to content that they already have. If you have a cloud locker service, somebody has bought a digital copy of a song or a movie from some other source, stores it in a locker and asks that it be streamed back, the cloud locker and storage service is not providing the content. It’s providing a mechanism for watching it.

Like the petitioners, the government argues that there’s a simple dichotomy between a service that supplies the content to members of the public in the first instance and one that does not. When the service itself supplies the content that its users can stream over the internet, it’s publicly performing. And when the service merely enables users to stream the content that they already possess, it’s not publicly performing. That’s how you can tell the difference between the two.

Not surprisingly, David C. Frederick, representing Aereo, thinks this simple dichotomy just doesn’t work. Justice Kagan asked Frederick why he thinks liability does not turn on who supplies the content:

Mr. Frederick, why isn’t it sufficient to create a line such as the one Mr. Clement said, which said, you know, do you on the one hand supply or provide the content, that puts you in one box; on the other hand, if you are not supplying or providing the content, if the user is supplying and providing the content, and you are just providing the space, a kind of platform for them to do that and for them potentially to share the content, that puts you in another box?

To which Frederick replied:

Well, Justice Kagan, I note that my friend did not reference the words of the Transmit Clause at all when he offered that distinction. And that’s actually quite important, because in order to get there, you have to make up words to put them in the Transmit Clause. But even if you were to think that that was good for a policy reason, you would still have to explain why the hundreds of thousands of people that are subscribers to Aereo’s service don’t have exactly the same fair use right to get over-the-air broadcast content that all of those people who are not Aereo subscribers but they happen to have a home antenna and a DVR. Those people have every bit as right to get that access. And the fact that they are doing it doesn’t make their antenna or their antenna provider a content provider.

As to his first claim, namely, that Clement “did not reference the words of the Transmit Clause,” I don’t think this is true. As noted above, Clement explicitly said his argument flowed from the “to the public” language in the Transmit Clause. What makes it “to the public” is the fact that the content is being supplied in the first instance to members of the public. I would add that this is the same rule that applies whether discussing the public distribution, performance, or display right. We’re interested in whether the transferor has supplied the transferee, a member of the public, with the content in the first instance. That’s what makes it “to the public.”

As to his second argument, I have to first point out that I don’t think there’s any such thing as a “fair use right.” As I explained in a prior post, fair use is a privilege, not a right. There is no affirmative right to make a copy. The only right is the copyright owner’s exclusive right to exclude others from making a copy. Regardless, the question isn’t whether a home user can set up an antenna and DVR to time-shift over-the-air broadcasts. That’s the reproduction right, which does not involve transferring the content from one party to a member of the public. The transfer of the content in that scenario comes from the over-the-air broadcast, which is a licensed public performance on the broadcaster’s part. And it needs to be licensed because the broadcaster is supplying the content “to the public” in the first instance.

But that’s not the issue here with Aereo. The issue is whether Aereo is publicly performing when the content is transmitted from Aereo’s service to members of the public. This is the transmission we are looking at, not the prior over-the-air transmission “to the public” from the broadcaster. The difference between this scenario and the home antenna and DVR scenario is that here Aereo is a middleman between the broadcaster and the member of the public. The transmission doesn’t go directly from the broadcaster to the member of the public; it goes from the broadcaster to Aereo to the member of the public. And the difference between the broadcaster and Aereo is that only the broadcaster has a license to publicly perform, i.e., to supply the content “to the public” in the first instance.

So the question is really whether Aereo is publicly performing by supplying the content to members of the public in the first instance. It seems clear to me that it is. Aereo’s service is “any device or process” that transmits copyrighted works “to the public.” Members of the public use Aereo to obtain the content in the first instance. And the fact that Aereo also enables its subscribers to make copies is beside the point. Those copies are just part of the “device or process” that Aereo uses to supply the content “to the public.” They don’t change the fact that Aereo is still engaging in the quintessential public performance, and Aereo can’t escape liability for copying by way of utilizing more copies.

Follow me on Twitter: @devlinhartline

Share: Reddit Google+ LinkedIn

About the author: Devlin Hartline

Devlin is a husband, father, and law geek (JD & LLM). He is currently an SJD candidate at Tulane Law in New Orleans, Louisiana, where he is writing his dissertation on copyright law. He is also a Mark Twain Copyright Fellow at the Center for the Protection of Intellectual Property at George Mason Law in Arlington, Virginia.

29 Comments

  1. Devlin, I am impressed at your ability to find some highlights to trumpet, out of an oral argument that appeared to go against most of what you have told us over the last few months. (Though I’d be more impressed if you were predominantly quoting Justices to make your points, rather than quoting advocates.)

    You told us that you’d be surprised if there was even discussion of the issue of whether Aereo was merely an equipment supplier. Yet this issue was raised early, and it looks like a majority, or close to it, of Clement’s time for argument was spent on such. There were several Justices pressing that, and I didn’t see any Justices coming to Clement’s defense, despite the extended engagement.

    Even Roberts, who most seem to read as strongly against Aereo (I would think it more likely he merely leans against them), chimed in to suggest an analogy likening Aereo to home equipment as a better analogy than Clement’s car dealer vs. valet analogy. (Despite your apparent appreciation for it, I don’t expect that analogy will go down as one of the more effective ever made at oral argument….)

    And both Clement and Stewart conceded that Aereo could be legitimately viewed as an equipment supplier (Clement’s specious argument that Congress foreclosed such notwithstanding).

    Likewise, you have told us that the broadcasters’ proposed broad interpretation of the transmit clause is obviously the straightforward and correct interpretation of the statutory text. Yet we saw several Justices clearly conveying that the broadcasters’ proposed interpretation would produce highly problematic and even absurd results — hell, they even treated seriously the argument that, under that interpretation, mailing DVDs could conceivably be a public performance — and Sotomayor called them out for actually trying to rewrite the transmit clause. Breyer was practically begging for anyone to explain to him how he could possibly find Aereo’s transmissions to be public performances without creating absurd results. (Yet nobody could.) And again, despite extended engagement on this issue, we didn’t see any Justices coming to Clement’s defense.

    You told us that there was no reason to be worried about impact to other cloud services, and yet it’s quite clear that some or all of the Justices see tremendous reason to be worried, and at least one seems to be struggling to see any way to rule against Aereo with badly screwing up other cloud services.

    You told us that the argument that the broadcasters were conflating the reproduction right and the public performance right was silly, yet this was clearly taken quite seriously, by at least Breyer.

    You have argued at times that that location of the equipment is effectively determinative of public vs. private performance, and yet at one point we saw Kagan tell Clement (skeptically) that his argument seemed to amount to nothing more than saying location of the equipment was determinative of public vs. private.

    Then also, there were no shortage of hypotheticals raised to test the proposed theories, and the Justices emphatically rejected the suggestion that it was acceptable to issue a ruling worrying only about properly classifying cases at the “extremes” and not those “in the middle.” (Not to mention that Stewart conceded that Aereo is not at an extreme at all, but rather, is one of those cases “in the middle!”)

    Isn’t this the same analytical approach that you repeatedly admonished me for taking, and in essence suggested I took only because I didn’t understand the law?

    As for your arguments about volition, we saw hardly any mention of such, and most of what we did see actually came from Frederick, making the point that the volitional conduct by Aereo is no different than that by other equipment suppliers. Only at the very end did Clement squeeze in a statement regarding volition (yet nothing he described as creating volition was any different than exists in a home DVR).

    There’s no question that many, perhaps even all, of the Justices are sympathetic to the notion that Aereo feels similar to a cable system. And I was disappointed to see that the Justices did not have the level of understanding of the facts, technical details, and arguments that I would have hoped and expected, going into oral argument.

    But I still don’t foresee this turning out to your liking. It seems to me that there are probably 5 votes that lean to Aereo, 3 that lean to the broadcasters, and 1, who the hell knows since he never says anything. And given how the arguments actually work (or don’t work), I’d guess there’s a much better chance that 1 or 2 of the 3 leaning to the broadcasters end up going to Aereo (because of what a mess would be created if they try to interpret Aereo’s system as just a “device or process” as you propose), than that any of those leaning to Aereo end up going to the broadcasters.

  2. J. S. Greenfield,

    You lost this case. Thank goodness.

    • LOL! I put it at 9-0 against Aereo after the oral argument. It seems to me the main focus was on how to narrowly draft the opinion so the cloud doesn’t get swept up too.

      • It’s nice that you put at 9-0. We don’t need to argue over how it will turn out. We’ll find out soon enough. (Though if you’d like to wager on you’re 9-0 forecast, I’d happily take it.)

        How about acknowledging all the things I listed that you lectured us about, which the Justices remarks revealed you were way off-base about?

        • No thanks! The fact is that I simply disagree with your take on things, but I don’t see any point discussing it any further. Take care, Jonathan.

          • I guess to you even facts, like the fact that the question of whether Aereo was merely an equipment supplier was a central theme of oral argument, are somehow subject to debate.

            That’s about as coherent as the rest of your arguments have been.

          • That’s about as coherent as the rest of your arguments have been.

            I tell you what, Jonathan. Since I’m so incoherent, I strongly suggest you find somebody else to pester. I’m truly not interested.

        • J. S. Greenfield,

          Angel investors as law-breaking “disruptors” that hurt Americans are inside-trading IPO wanna-bee devils. Oh, wait….Aereo can’t DVD-R me the retransmission of the SJC audio of the oral arguments when they lose? Thank goodness.

  3. Pingback: Video Grandpa - Video Grandpa Podcast 060

  4. Why is everyone so quick to draw conclusions without having all the facts?

    • We have all the facts.

      • Ed you’re right. It’s in gematria.

        • No Sperty,

          Read the SJC Transcript. It’s right here, since you’re supporting the side that doesn’t want to comply with the law:


          MR. FREDERICK: We don’t have a brief to defend the master copy because in the master copy situation, that is indisputably public because there is no right to exclude anyone else. With Aereo’s technology, if I’m making a copy using Aereo’s system, no one else can look at it. Even if you happen to have watched the same program, you can’t watch my copy, I can’t download it –
          CHIEF JUSTICE ROBERTS: That’s just saying your copy is different from my copy.
          MR. FREDERICK: Correct.
          CHIEF JUSTICE ROBERTS: But that’s the reason we call them copies, because they’re the same. All I’m trying to get at, and I’m not saying it’s outcome determinative or necessarily bad, I’m just saying your technological model is based solely on circumventing legal prohibitions that you don’t want to comply with, which is fine. I mean, that’s you know, lawyers do that. (emphasis added).

          HAVE A NICE DAY!

  5. Devlin,

    Hmm, if I was a cloud provider I would definitely be worried about a judgement against Aereo. I’m not sure how a judgement against Aereo wouldn’t effect cloud providers. For instance, if a cloud storage provider allowed users to store files in their space by providing a URL instead of direct upload (and many currently do), I can see no easy way to distinguish between that and what Aereo is doing.

    • Can you give me an example of a cloud storage service where you don’t upload your files to the service? Are you talking about a service that scans the files on your local hard drive and then doesn’t require you to upload them if there’s already a copy of that file on their service? In that case, I think the simple dichotomy that I’m advocating works well. Namely, you’re only able to get back the files that you had in the first place, kind of like a valet service, instead of being able to get files in the first instance, kind of like a car dealer. The funny thing is, I actually think Aereo’s construction of the Transmit Clause is worse for the cloud because it doesn’t allow for deduplication and such.

      • Ah, but with a valet service, one doesn’t get a copy of the car returned. A storage service is not the original material object, but a copy, a reproduction. In reality, as the Court easily figured out, Aereo and “storage services” are instant, counterfeit services of reproductions, not a record store selling ten thousand phonorecords (i.e.: physical objects). As Chief Justice Roberts stated concerning Aereo’s mutual exclusion argument of separate copies for each stranger, “[b]ut that’s the reason we call them copies, because they’re the same.” (emphasis added). That sentence has finally has been stated in the highest court on the world—-a phrase that is the Achilles Heal of the greatest theft machine of all time, Google. Oh no, Eric Schmidt (Chairman of Google, and then CEO of catastrophic copyright theft), all the copies are the same.

        To conclude, a storage locker (like brand name Public Storage) of someone’s furniture does not make an instant copy of the couch. Much like a Valet service does not give back to the owner, a copy of the original car. But Aereo, MegaUpload, Google/YouTube, Mozilla’s Video DownloadHelper, etc. make instant, unauthorized counterfeit copies; and to view (or download) each, another copy has to be produced. My God, talk about a catastrophic, world destroying, economic horizontal-line busting cistern of gimmicks.

        Thanks.

      • I know that Imgur, Blogspot, ImageShack are sites that allow this kind of thing. Google Image Search, while not a defacto “storage” service, also allows searches by URI. Again, see no difference between a URI and a OTA broadcast, even technically, you legitimately establish a URI for an OTA broadcast and a service might actually capture it if a user directs them to it.

        I think tech/cloud companies are legitimately concerned that a decision like Aereo will arbitrary require things like users have to download from the URI directly to some kind of local storage before bouncing it off their local computer to the cloud. Which is well kind of bizarre.

        Or you can just go with Ed’s interpretation where most of the Internet is illegal anyway. He’s actually right that transmission is reproduction, a computer makes many copies of anything it transmits or even processes and displays at many different phases (from system memory, to L2 cache, to L1 cache, to registers, to DMA devices, to the wire, a the queue on many routers on the Internet). Worse yet, these copies usually exist simultaneously. Since the copies in fact, exist in many places and often in complete forms, with the right tools any user can intercept the data in many different places (that’s how tools that get around copy protection often work).

        You can’t even say these are temporary copies, because it’s all non-deterministic decisions driving this kind of thing. There is no mathematically guarantee of what time they will be released from memory. The courts may not see these copies as bonefide violation of a author’s copyright, but from a technical perspective, Ed is actually right about the copying that is happening. Technically, if we are to take the interpretation that copyright infringement is any user directed copying, there is no legal way to be using a computer.

        • I know that Imgur, Blogspot, ImageShack are sites that allow this kind of thing. Google Image Search, while not a defacto “storage” service, also allows searches by URI. Again, see no difference between a URI and a OTA broadcast, even technically, you legitimately establish a URI for an OTA broadcast and a service might actually capture it if a user directs them to it.

          I think the issue is that you can’t legitimately establish a URI for an OTA broadcast. By establishing that URI, Aereo is publicly performing once that URI is used to transmit a performance of a work.

  6. And don’t let me get into quantum mechanical interpretations of the nature of observation.

    • And don’t let me get into quantum mechanical interpretations of the nature of observation.

      Haha! You lost me at “L1 cache” and “DMA device,” so I don’t think quantum mechanics will help. But I get your larger point that there are in fact many copies happening under the hood.

      • Devlin–
        Well re: computers necessarily copying anything that touches them, what you’ll want are MAI v. Peak, 991 F.2d 511 (9th Cir. 1993), which was followed to its ultimate conclusion by Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999), and which an important precedent for Aereo is contrary to, that being Cartoon Network v. CSC Holdings, 536 F.3d 121 (2d Cir. 2008).

        In looking at this, I’d suggest considering just what fixation consists of. In particular, look on Wikipedia for delay line memory, a very old form of computer memory, long since replaced by modern solid state RAM (with many steps in between). One form stored data as an acoustic signal in liquid mercury for the length of time it took for the wave to move from one end of the mercury tube to the other. The only technical reason not to use, say, air, was that it would’ve been slower. If MAI controls, how can we distinguish private performance of a sound recording from reproduction, if only briefly?

        IIRC Jessica Litman has written about the need for general purpose exceptions for incidental copying by computer. Right now everyone who uses a computer basically has to rely on implied licenses and fair use and that’s not a great position to be in.

        • Thanks! I’m familiar with MAI, but I’ve never looked at the line of cases that followed. I assume the Litman piece you’re referring to is this: http://www-personal.umich.edu/~jdlitman/papers/LawfulPersonalUse.pdf I agree with much of what she argues, and personally, I have no problem with personal use privileges being made explicit in the Copyright Act.

          • Devlin–
            Well if you’re going to talk about Aereo, Cartoon Network is absolutely essential. Intellectual Reserve is only interesting for its discussion of underlying direct infringement to support secondary infringement, and it’s not a long part of the case, so you could get through it in a few minutes, I’m sure; I’ve found it to be a great go-to case for how absurd copyright law has gotten.

            As for Litman, I believe I was thinking of her book ‘Digital Copyright.’ But it’s been a while since I read it, and unfortunately I can’t currently take the time to get it off the shelf and refresh my memory. I wasn’t talking about exceptions for personal use, however (which surely are not privileges; when the shackles of copyright do not burden a work either wholly or with regard to a particular use, lawful use of the work is an exercise of their right of free speech, regardless of the lack of a right to guaranteed access to copies of the work). As I said, computers all inherently copy information in order to function. I’m not even sure that it’s possible to build a computer that didn’t copy anything and everything that passed through it. Even if we could, it would probably be so slow and limited in its applications as to be useless.

            So I think we need a sort of de minimis exception for computers and other technology that requires copying. I haven’t reduced it to an exact formulation, but something like largely automatic infringement which occurs in the ordinary use of a device and which isn’t intended to itself infringe, would be non-infringing. Needs work, obviously.

            We could also use a very broad exception for non-commercial actors using copyrighted works, which would go beyond personal use but not so far as to directly or indirectly compete with regard to the economic exploitation of works. Putting fanfic online for the whole Internet to turn their noses up at, isn’t personal use, but if it were done without ads, or any other method of exploiting it for economic gain (and thus funneling some money away from the holder of the copyright of the underlying work), it’s perfectly fine and ought not to be prohibited.

          • Well if you’re going to talk about Aereo, Cartoon Network is absolutely essential. Intellectual Reserve is only interesting for its discussion of underlying direct infringement to support secondary infringement, and it’s not a long part of the case, so you could get through it in a few minutes, I’m sure; I’ve found it to be a great go-to case for how absurd copyright law has gotten.

            I was just checking through my notes, and I see that I did read that particular case a few years ago (I use to keep notes on every case I read, but I stopped doing that a year or so ago since I read too many cases nowadays!). The district court there said that hyperlinking can only lead to indirect liability. I agree that much of the case law points that way, but there are some dissenting views, including my own. I don’t see much if any difference between giving somebody a link to a file and giving somebody the file. The link’s only purpose is to give the person who clicks on it the file. But I think we’re off on a tangent here since Aereo isn’t a linking case.

            I wasn’t talking about exceptions for personal use, however (which surely are not privileges; when the shackles of copyright do not burden a work either wholly or with regard to a particular use, lawful use of the work is an exercise of their right of free speech, regardless of the lack of a right to guaranteed access to copies of the work).

            Well, I disagree for reasons discussed here: http://lawtheories.com/?p=478 In the Hohfeldian sense of the word “right,” there are no First Amendment rights. The First Amendment merely says that Congress can’t abridge the freedom of speech. That creates in Congress a disability and in us an immunity, but telling Congress it can’t do something is not the same thing as granting us an affirmative right. Thanks for the Litman reference to “Digital Copyright.” I haven’t seen that one.

            So I think we need a sort of de minimis exception for computers and other technology that requires copying. I haven’t reduced it to an exact formulation, but something like largely automatic infringement which occurs in the ordinary use of a device and which isn’t intended to itself infringe, would be non-infringing. Needs work, obviously.

            I think you’re on to something. As far as I know, though, nobody is suggesting these changes in the current revision process that is underway. Personally, I take an expansive view of personal use and fair use, with the caveat that the rights that do exist should be meaningful–i.e., enforceable and enforced.

          • Devlin–
            “But I think we’re off on a tangent here since Aereo isn’t a linking case.”

            That’s not the interesting part of Intellectual Reserve, actually. The interesting part is § I (B)(2)(a) of the opinion: “Do those who browse the websites infringe plaintiff’s copyright?” The Intellectual Reserve court finds that the answer is yes! Merely using a computer to read a web page online, without any intention to infringe, and taking all reasonable steps to avoid infringement, can give rise to civil liability for the person doing the reading because copyright is a strict liability statute and computers necessarily make copies of everything that goes through them. But the court reminds us that this is not as bad as it sounds, because the statutory damages in such a case would likely only be in the range of $200 – $30,000 per work.

            And I know what you’re thinking. You’re thinking, did I surreptitiously hide material in my posts about that case which I copied in an infringing and unfair manner? Now to tell you the truth, I forgot myself in all this discussion. But being that your merely reading my posts could expose you to a lawsuit in which you’d have to successfully argue for either an implied license from the actual copyright holder, or successfully claim fair use, or suffer civil liability for at least hundreds, maybe tens of thousands of dollars, you’ve got to ask yourself a question: Do you think that this is how the law should be? Well do you, Devlin?

            “In the Hohfeldian sense of the word “right,” there are no First Amendment rights.”

            First, I didn’t say ‘First Amendment rights’ I said free speech rights. The First Amendment merely guarantees underlying, natural rights. Second, I couldn’t care less about Hohfeld, and I don’t think you have a good excuse for trying to humpty dumpty your way through arguments by using his peculiar terminology which merely by accident happens to appear to have an opposite meaning to the ordinary use of those terms, not only in lay debate, but even among more informed people.

            “As far as I know, though, nobody is suggesting these changes in the current revision process that is underway.” Of course not. Cui bono?

            “Personally, I take an expansive view of personal use and fair use, with the caveat that the rights that do exist should be meaningful–i.e., enforceable and enforced.”

            I think that there is a balance between illegality and practical enforcement. People are willing to tolerate speed limits but everyone still speeds all the time anyway because they know that as long as they aren’t egregious speeders and don’t get into accidents, they’ll probably get away with it. If speed limits were perfectly enforced, such that literally everyone who sped got ticketed, the outrage would be sufficient to either destroy the system of perfect enforcement or to raise the speed limit such that it was only good against the people who were egregious speeders. Of course our far-from-perfect political system can interfere with this to some extent; I know of a speed trap in a certain state capital that had been around for years without getting changed, but as soon as the then-Secretary of State got ticketed speeding through it, the limit on the road got raised so as to eliminate that trap.

            Right now most people in their day-to-day lives completely ignore copyright because their obedience to that law would do nothing beneficial for them and would interfere mightily in what they actually do want to do, much of which those people find unobjectionable (like how most Americans thought that Prohibition was a good, useful policy, but continued to drink anyway). Whatever benefits might be derived from having a system of copyright that promotes progress, etc. are too remote for people to notice or care about. If copyright were more vigorously enforced — including through mere technical self help like DRM schemes — it would only make people angrier at the unwarranted and overreactive interference of copyright in their lives without even providing any direct benefit of notice.

            So if you want copyright to be more enforceable and more enforced, I strongly suggest that you cut back on copyright as against ordinary people, and only permit for more enforceability and enforcement against other industry players. And I would caution against trying to use industry players as proxies for the public (e.g. a stronger take-down system) because the distinction will not matter one iota; people will still (rightfully) interpret it as an attack against themselves.

            Try to push copyright maximalism too far and you might not be glad that you did; it will only cause the pendulum to swing that much further in the other direction. That’s why I think that it’s important to embrace real reform now, instead of having to endure having something more substantial imposed later. But no one ever accused the players in the copyright industry of being thoughtful or of possessing enlightened self-interest.

          • That’s not the interesting part of Intellectual Reserve, actually. The interesting part is § I (B)(2)(a) of the opinion: “Do those who browse the websites infringe plaintiff’s copyright?” The Intellectual Reserve court finds that the answer is yes! Merely using a computer to read a web page online, without any intention to infringe, and taking all reasonable steps to avoid infringement, can give rise to civil liability for the person doing the reading because copyright is a strict liability statute and computers necessarily make copies of everything that goes through them. But the court reminds us that this is not as bad as it sounds, because the statutory damages in such a case would likely only be in the range of $200 – $30,000 per work.

            Yes, using a machine that literally makes copies might make someone a prima facie infringer of the reproduction right. But I don’t think this has turned out to be a huge thing. In the 15 years since the district court in Utah said this, have any individual users ever been on the hook for such copies?

            And then you have the Ninth Circuit saying that such copies are fair use:

            Finally, Perfect 10 contends that users who link to infringing websites automatically make “cache” copies of full-size images and thereby directly infringe Perfect 10′s reproduction right. The district court rejected this argument, holding that any such reproduction was likely a “fair use.” Id. at 852 n. 17. The district court reasoned that “[l]ocal caching by the browsers of individual users is noncommercial, transformative, and no more than necessary to achieve the objectives of decreasing network latency and minimizing unnecessary bandwidth usage (essential to the [I]nternet). It has a minimal impact on the potential market for the original work….” Id. We agree; even assuming such automatic copying could constitute direct infringement, it is a fair use in this context. The copying function performed automatically by a user’s computer to assist in accessing the Internet is a transformative use. Moreover, as noted by the district court, a cache copies no more than is necessary to assist the user in Internet use. It is designed to enhance an individual’s computer use, not to supersede the copyright holders’ exploitation of their works. Such automatic background copying has no more than a minimal effect on Perfect 10′s rights, but a considerable public benefit. Because the four fair use factors weigh in favor of concluding that *1170 cache copying constitutes a fair use, Google has established a likelihood of success on this issue. Accordingly, Perfect 10 has not carried its burden of showing that users’ cache copies of Perfect 10′s full-size images constitute direct infringement.

            Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1169-70 (9th Cir. 2007).

        • Yes! How technology interacts with the assumptions of copyright is critical to understand why we are here today. The reason copyright enforcement has become almost intractably difficult has everything to do with the nature of the computer. Everything. You have a machine on your desk that can copy whole libraries of information with ease, and it’s only getting better at it.

          • Devlin–
            “Yes, using a machine that literally makes copies might make someone a prima facie infringer of the reproduction right. But I don’t think this has turned out to be a huge thing.”

            Sorry, but I know that it’s dangerous not to practice proper firearm safety, even with Checkhov’s Gun. If it’s not important for plaintiffs, we can safely make this noninfringing. They’ll lose nothing and we’ll all be safer. If they oppose such a move, it indicates that they do intend to use it in the future.

            “And then you have the Ninth Circuit saying that such copies are fair use”

            No, as always, it’s saying that they may be a fair use. And I said that it may be a fair use. But who wants to put their faith in that? Fair use is a Hail Mary defense, and often if that’s all you’ve got, copyright produces a chilling effect on legitimate uses. If that nonsense about copyright working hand in hand with free speech is to be believed (though really it’s more like dagger in back), relying merely on fair use in a case such as this should not be considered acceptable by anyone.

          • Nice reference to Chekhov’s Gun! I haven’t heard that one in a while. But I still think it’s not a big deal. I could only find one court citing that case in Utah you mentioned, and the cite wasn’t favorable. That case hasn’t turned out to be a ticking time bomb by any means.

            I get what you’re saying, though, and I even agree that it makes sense to spell out explicitly that such copies are not infringing. But it seems to me that such an exception would still operate as a defense, like fair use. The fact remains that a copy is being made, and this is a prima facie violation of an author’s exclusive right.

            That said, I also think it’s interesting that these sorts of uses are being analyzed under fair use since there is no personal use exception to analyze them under. And since they’re being analyzed under fair use, that is stretching the fair use doctrine out quite a bit more than it would be otherwise. For people who support a broad fair use privilege, I would think this is welcome news. The lack of personal use exceptions only operates to broaden the fair use exceptions.