Why a Loss for Aereo Wouldn’t Threaten Cloud Services — Todd Spangler at Variety has a great post responding to the doomsday scenarios Aereo supporters have been employing as The Supreme Court prepares to hear arguments in the case. “A Supreme Court finding that Aereo violates provisions of the Copyright Act narrowly tailored to this case won’t kill Dropbox, Apple iCloud, Google Drive, Box, Microsoft OneDrive or Amazon Cloud Drive. Those services aren’t jury-rigged to pull in content from third-party sources without permission. And they’re already protected from liability for copyrighted material illegally uploaded to their services under the Digital Millennium Copyright Act. Cablevision, as noted, already has content rights.”

Alexander on Property’s Ends — A thought-provoking scholarly article that argues property’s ultimate end is human flourishing. This is contrary to the views of many copyright skeptics, who suggest that the fact that copyright has a purpose beyond private gain somehow distinguishes intellectual property from property in general.

USTR Froman: ‘We Have Had Over 1,200 Meetings With Congress On TPP’ — At a House Ways and Means Committee hearing this week US Trade Representative Froman discussed the Trans-Pacific Partnership, currently being negotiated between a dozen countries. As with all US Free Trade Agreements, the TPP sets standards for IP protection, of which Froman said, “The United States is an innovative economy, and the Obama Administration is committed to protecting intellectual property (IP), which is vital to promoting and encouraging innovation and creativity… Millions of American jobs rely on IP, and we will continue to use our trade agenda in 2014 to defend the IP rights of our creators and innovators while supporting the freedom of the Internet, encouraging the free flow of information across the digital world, and ensuring access to medicines, particularly by the poor in less developed economies.”

Baude on Federalism — The best only good April Fool’s joke this week. “The most natural question to ask about zombies and constitutional law is whether zombies are persons within the meaning of the Constitution. But that question turns out to be remarkably difficult. The word “person” appears repeatedly throughout the Constitution, but without any clues about whether it extends to zombies. What’s the best constitutional solution to this problem? Zombie Federalism. The Constitution does not resolve the question of zombie personhood, so we should understand it to leave that question to state law.”

Share: Reddit Google+ LinkedIn

8 Comments

  1. In regards to Todd Spangler at Variety where he wrote that companies like “Dropbox, Apple iCloud, Google Drive, Box, Microsoft OneDrive or Amazon Cloud Drive [, a]re already protected from liability for copyrighted material illegally uploaded to their services under the Digital Millennium Copyright Act. Cablevision, as noted, already has content rights.”…

    That is not true.

    Thanks.

    • Ed,

      Which part isn’t true?

      • Ah, yes. The paste extended accidentally including the Cablevision section (I can’t re-edit the post). The part where Todd Spangler at Variety wrote that cloud storage sites are “already protected from liability for copyrighted material illegally uploaded to their services under the Digital Millennium Copyright Act.” The man used the phrase “already protected” so that a willfully blind gateway for wholesale, illegal content can be uploaded for appended profit away from content owners, investors, retailers, and consumers.

        That is clearly is not true. Variety should retract it. There is no DMCA protection (see EMI v. MP3.com (by jury)) for the specific language that Todd Spangler asserted.

        I’ll refrain from additional case law, but if Mr. Spangler (of Variety) was presented with it, I’m assured his response would be “I’m not a lawyer, I can’t help you, go seek advice (BS)”. But the damage has “already” been done. He “already” presented an opinion for the Occupy Wall Street neanderthals to upload illegal content….why not, the Cloud companies are protected so upload all the “illegal” stuff, according to Mr. Spangler of Variety,

        Thanks.

        • Perhaps you would be so kind as to explain how a cloud storage service that follows the rules contained in the DMCA so as to preserve its safe harbor is suddenly stripped of safe harbor should Aereo go down in flames. Some specific, detailed examples would be most helpful to facilitate discussion.

          Let us not overlook one salient difference between most cloud services and Aereo. Aereo specifically selects the sources from which television shows will be provided, whereas in a classical cloud service scenario the service provider does no such thing. If this statement is too general to your liking, please explain why and I will endeavor to elaborate.

          • DMCA provides only safe harbor, subject to notice and takedown. If the transmissions from personal storage services are public, and therefore subject to takedown notices just like Youtube, that’s pretty transformative of those services. Furthermore, that safe harbor is also conditional on services not having actual knowledge of the infringement. So to the degree that cloud providers actually know what the content stored is, they would be liable, even without a takedown notice.

            As for Aereo, putting up an antenna isn’t selecting sources. Nor is enabling a program guide for all broadcasters available in a market. The broadcasters who actually broadcast in any given market “select” the sources, by broadcasting their signals.

            And in any case, even assuming, arguendo, that Aereo were facilitating improper access to sources via their antennas, that would go to the question of whether they are facilitating infringement of the reproduction right by enabling users to record those sources. Once the users have obtained the content, what they do with it in private is still in private. If I make an illegal copy of a movie, and then take it home and watch it in my den, that’s still a private performance. It isn’t transformed into a public performance because the copy is illegal. (And for that matter, if somebody else contributed, or even made the copy for me, they don’t suddenly become the performer, either, when I perform the work in my den.)

            But here, plaintiffs aren’t asserting infringement of their reproduction right, because even they believe they would fail at such.

            And not that it’s relevant, but as a point of fact as to what other cloud services do, many of them actually do select sources, since at least a few of the largest of them actually sell users content (from a catalog), to put into their personal storage lockers.

          • Pro se,

            AH. What you’re saying is that a company “already” knows the wholesale willful blindness exists so that all copyrights, at any time, and therefore can create a service before hand without any regard, so that anyone can “illegally” uploaded as a copy of a copyrighted work without the exclusive right to authorize, millions at a time, from which all can be downloaded as another copy millions at a time instantly until exhausted, because copyright the law says that is a protected practice? That’s following the rules? Which rules? Create a machine aware of the instant theft, let the apparatus work exclusively without a human right, so both humans and other computers take, counterfeit, and append ads without authorization, right? That’s the rule? Oh, the company will create another machine (like Content I.D.) to monitor another machine so that a third machine will decide to delete (or block) the infringement. Oh, that will stop the nuke.

            Read the jury ruling in EMI v. mp3tunes.com, criminal activity to create a conduit to counterfeit multiple times. See HotFile. In fact, YouTube already had 2 Million people view “Noah” as a featured video last night. No need to pay and go to the theater, it’s all free with appended ads.

            In Aereo, the DMCA is immaterial. That case intercepts an original transmission to sell it as an unauthorized secondary transmission. That is different.

            Thanks.

          • AH. What you’re saying is that a company “already” knows the wholesale willful blindness exists so that all copyrights, at any time, can be infringed, and therefore that company can create a service beforehand without any regard, so that anyone can “illegally” uploaded as a copy of a copyrighted work without the exclusive right to authorize, millions at a time, from which all can be instantly downloaded as another series of copies millions at a time instantly until exhausted—-because copyright law says that is a protected practice?

            That’s following the rules? Which rules? To create a machine aware of the instant theft, let the apparatus work exclusively without a human right, so that both humans and other computers counterfeit, steal, and append ads without authorization, right? That’s the rule? In other words, the company will create another machine (like Content I.D.) to monitor another machine so that a third machine will decide to delete (or block) the infringement. Oh, that will stop the nuke.

            Read the jury ruling in EMI v. mp3tunes.com, criminal activity to create a conduit to counterfeit multiple times. See HotFile. In fact, YouTube already had 2 Million people view “Noah” as a featured video last night. No need to pay and go to the theater, it’s all free with appended ads.

            In Aereo, the DMCA is immaterial. That case intercepts an original transmission to sell it as an unauthorized secondary transmission. That is different.

            Thanks.

      • That should read “see EMI v. MP3tunes.com (by jury))”