Friday’s Endnotes – 05/10/19

By , May 10, 2019.

CASE Act Promises Long-Overdue Access to Justice for Individuals and Small Businesses in the Arts — “For countless individual artists and small businesses, combating the unauthorized use of their creative works online is a source of enduring frustration. The frequency and ease with which photographs, sound recordings, videos, and other works of authorship are shared on the Internet leaves those without significant time and resources little recourse when they encounter infringement. But now, after years of advocacy by creators like Jenna, new legislation promises long-overdue support for these marginalized groups in the ongoing fight against overwhelming infringement in the digital age.”

Malware from illegal video streaming apps: What to know — The Federal Trade Commission warns, “Purveyors of pirated content are now spreading apps and add-ons that work with popular streaming devices. If you download one of these illegal pirate apps or add-ons, the chances are good that you’ll also download malware.”

Public Knowledge wants to solve the misinformation problem? That’s adorable. — The claim is that allowing institutions to digitize and distribute copyrighted works without the permission of the copyright owner will lead to a more enlightened populace. David Newhoff doesn’t buy it.

LISTEN: Artists call for review of Copyright Amendment Bill — “Celebrated South African artists have come together to create a song that implores President Ramaphosa to send the flawed Copyright Amendment Bill back to parliament for critical review.”

Friday’s Endnotes – 01/19/17

By , January 20, 2017.

VidAngel: It’s Not About Filtering — Jonathan Bailey takes a look at a case that has so far flown a bit under the radar. Currently on appeal to the 9th Circuit after a District Court granted the plaintiff’s motion for a preliminary injunction, Disney v VidAngel raises a number of issues, including Section 1201, first sale, and fair use, but defendants argue their video on demand service is authorized by an obscure provision in the Copyright Act that allows viewers to filter out mature elements from authorized copies of movies.

Digital copyright laws must protect content creators — Neil Turkewitz writes, “In a recent Hill op-ed, Public Knowledge’s Charles Duan and R Street’s Sasha Moss call for the Supreme Court to weigh in on a ten-year-old copyright case involving notice and takedown, copyright and a dancing baby. But their piece dances around inconvenient truths, and is predicated upon a rather ‘transformative’ use of reality.”

Lee staying on as patent chief under Trump administration — Yesterday, news broke that the Obama-nominated Michelle Lee will remain on board as Director of the US Patent and Trademark Office in the incoming administration. Despite its name, the USPTO also advises other Federal agencies on copyright policy.

Newman on Vested-Use Privileges in Property & Copyright — A common criticism of copyright is that it impinges on a person’s personal property rights. That is, if a copyrighted work is embodied in some material object like a book or a toaster, the owner of that object is limited by copyright law by what they might otherwise be able to do with that object. In this law review article, Christopher Newman offers a compelling argument in response to that criticism.

Friday’s Endnotes – 12/16/16

By , December 16, 2016.

Everyone is handing in their reports before the holidays. This week, the Intellectual Property Enforcement Coordinator published its 2017-2019 Joint Strategic Plan on Intellectual Property Enforcement, while the US Copyright Office released a report on Software-Enabled Consumer Products.

Congressional panel calls for independent Copyright Office — Last week, the House Judiciary Committee released a policy proposal that would give the Copyright Office the autonomy over IT, staff, and budget that it needs in order to bring the Office into the 21st century. The Washington Post’s Peggy McGlone looks at the proposal in more detail, including reactions from constituents.

Public Knowledge’s Lonely Echo Chamber of Copyright Advocacy — Geoffrey Manne and Neil Turkewitz write, “Public Knowledge’s implication that it is a better defender of the ‘public’ interest than those who actually serve in the public sector is a subterfuge, masking its real objective of transforming the nature of copyright law in its own, benighted image. A questionable means to a noble end, PK might argue. Not in our book. This story always turns out badly.”

Breaking Down the Fairness for American Small Creators Act — Last week, we also saw the introduction of HR 6496, the Fairness for American Small Creators Act. Jonathan Bailey takes a deep dive into the bill, which would set up a voluntary copyright claims process as an easier and less costly alternative to federal litigation.

Hollywood Studios Win Injunction Against Streamer VidAngel — A federal judge rejected all of the opportunistic arguments against VidAngel, finding the service not a clever workaround of copyright law, but rather an unlicensed video-on-demand service. VidAngel has vowed to take the case all the way up to the Supreme Court.

Fair Use… The Final Frontier? — Finally, next week, the Central District Court of California will hear arguments on motions for summary judgment in Paramount v Axanar, a case involving an allegedly unauthorized spin-off of Star Trek. Paramount argues that the film at issue is little more than an infringing derivative work of the many Star Trek television episodes and films, while Axanar argues either that their film does not share substantial similarities with any of Paramount’s works or that any infringement is excused by fair use. By Grabthar’s Hammer, expect many clumsy Star Trek references when the hearing is reported.

Friday’s Endnotes – 08/19/16

By , August 19, 2016.

Public “Selective” Knowledge — Steve Tepp writes, “Disagreement on law and policy in the field of copyright have become routine. But in the past few weeks, Public Knowledge has crossed the line of civil and intellectual debate, levelling ad hominem attacks against the widely respected U.S. Copyright Office, claiming it ‘has a long history of being bad at its job, and misrepresenting the law.’ But a critical review of Public Knowledge’s own statements reveals that these attacks are baseless, self-serving, and hypocritical.”

The Internet’s Safe Harbor Did Not Just Become A Little Less Safe — Franklin Graves looks at the August 8 decision in BMG v Cox, where the Eastern District of Virginia upheld a jury verdict finding an ISP liable for contributory copyright infringement. Says Graves, “From a corporate prospective, a business has two choices when faced with an arguably gray area of the law. First, they can comply to the best of their ability with statutory requirements as they stand and proceed with disputing the requirement. Alternatively, they can ignore then-current legal requirements, take the chance of being wrong, and suffer the consequences if found to be in violation at a later date. Simply because an ISP has decided to fight the system and lost doesn’t mean the entire system is broken.”

Cloudflare’s desperate new strategy to protect pirate sites — Devlin Hartline on the latest litigation involving Cloudflare. “In April of 2015, several record label plaintiffs sued MP3Skull for copyright infringement, easily obtaining a default judgment when the defendants failed to respond to the suit. Earlier this year, the plaintiffs were granted a permanent injunction, which the defendants quickly flouted by setting up shop under several different top-level domains. Naturally, the common denominator of these multiple MP3Skull sites was that they used CloudFlare. The plaintiffs’ lawyers sent a copy of the injunction against the pirate sites to CloudFlare, asking it to honor the injunction and stop supplying services to the enjoined domains. But, as with Grooveshark, CloudFlare again refused to comply.”

Appeals Court Upholds U.S. Government’s Seizure of Megaupload’s Mega-Millions — The Fourth Circuit is having none of Dotcom’s nonsense, rejecting all his arguments in the civil asset forfeiture proceeding that is running concurrent with the criminal case. In part, the appellate court relied on evidence from the district court that Dotcom intended to avoid prosecution, writing, “For example, Kim Dotcom posted a message to Twitter stating ‘HEY DOJ, we will go to the U.S. No need for extradition. We want bail, funds unfrozen for lawyers & living expenses.’ The court rightly found this and other public statements to strongly suggest Dotcom was resisting extradition to posture for criminal proceedings, using the ability to avoid prosecution as leverage.”

It’s Guest Blog Wednesday featuring Tom Kennedy! — An interview with Tom Kennedy, executive director of the American Society of Media Photographers, who, along with American Photographic Artists, Digital Media Licensing Association, Graphic Artists Guild, Nature Photographers of North America, National Press Photographers Association, and Professional Photographers of America (PPA), have been working hard to create a copyright small claims process in the US Copyright Office.

Balance in Copyright

By , June 01, 2016.

Everybody says we should strive for balance in copyright law. Indeed, who is against balance in principle? The real question is what exactly you mean—what is being balanced?

Copyright skeptics have a consistent answer to this. When Carla Hayden was nominated to be Librarian of Congress earlier this year, American Library Association Managing Director of Government Affairs Adam Eisgrau urged Hayden to talk about the “importance of a real balance in copyright law, one that really puts limitations and exceptions on equal footing with rights.”

Similarly, in an amicus brief to the Supreme Court, Public Knowledge framed the concept of balance in copyright law as one between an author’s right on the one hand and “numerous limitations on the scope of that monopoly right that guarantee to the public certain rights to use, access, and enjoy those created works.”

EFF’s Corynne McSherry has previously written that it is the role of fair use to make sure that “copyrights serve rather than impede the public interest.”

Thanks to copyright rules governing the right to copy, distribute and perform, the folks who held copyrights in the works at issue in the above cases has (and have) a chance to seek compensation. And thanks to copyright rules protecting fair uses, other creative people, their users and the public had (and have) an opportunity to engage with those works in new and unexpected ways. That’s the copyright balance at work.

I contend that this conception of balance, setting authors’ rights on one scale and limitations and exceptions on the other, is both one-dimensional and detrimental to the overall goals of copyright. The underlying assumption is that authors’ interests are distinct from the public’s interests, and that one can only be furthered at the expense of the other. But this isn’t the case.

It seems more accurate to describe authors’ interests and the public’s interests as interrelated and mutually reinforcing. After all, at a very basic sense, the performer and the audience need each other; likewise with the author and the reader. The idea behind copyright is that a marketable right in the tangible expression an author produces is the best way to advance the interests of both. The eighteenth century economist Adam Smith is noted for articulating this logic—that “rational self-interest in a free-market economy leads to economic well-being.” As he says in Wealth of Nations, “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” Copyright gives authors a means to pursue their self-interest, and the public benefits as a result of this pursuit.

Although there is a lot of speculation about what motivated the Constitution’s drafters to include copyright authority at the Federal level, the most direct evidence of that motivation points toward an embrace of Smith’s ideas. In The Federalist Papers 43, James Madison, the chief proponent of the Constitution’s Copyright Clause, wrote that “The utility of this power will scarcely be questioned.” Echoing Smith directly, he said, “The public good fully coincides…with the claims of individuals.”

The US Supreme Court has recognized this principle on several occasions. In Mazer v. Stein, it said, “The economic philosophy behind the clause empowering Congress to grant patents and copyrights 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 in ‘Science and useful Arts.'”1347 U.S. 201 (1954).

Register of Copyrights Maria Pallante captured the above discussion perfectly in her 2013 article on The Next Great Copyright Act. There, she says, “The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, authors are not a counterweight to the public interest but are instead at the very center of the equation.”

Maintaining Balance in Copyright Law

Once we recognize the intertwined nature of author rights and the public interest, we can examine several ways in which balance between the two is maintained.

First, establishing marketable property rights balances between two of the primary goals of copyright: rewarding the intellectual labor of authors and encouraging the dissemination of expressive works to the public. Generally speaking, authors and distributors want to reach as wide an audience as possible, so they will offer their works on terms and prices that achieve this. The ability to recoup investment in the production and distribution of such works facilitates stable and sustainable markets. And as many have pointed out, though any given individual work is unique, copyright does not have monopolistic properties since there exist many close substitutes, eliminating the ability of copyright owners to extract supracompetitive prices.2See, for example, Tom Sydnor, Can Economic and Historical Analyses End Copyright Law’s Property/Monopoly Disputes?, American Enterprise Institute (2015); Stan Liebowitz, Is the Copyright Monopoly a Best-Selling Fiction? (2008).

Second, a number of internal copyright doctrines balance between ensuring that authors can recoup the value of their work while also preserving the ability for follow-on and downstream creators (and the public) to build on existing works through inspiration, homage, criticism and commentary. The Supreme Court said in Harper & Row v. Nation Enterprises,

The challenge of copyright is to strike the “difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.”

The “originality” requirement now embodied in § 102 of the Copyright Act is crucial to maintenance of the appropriate balance between these competing interests. Properly interpreted in the light of the legislative history, this section extends copyright protection to an author’s literary form but permits free use by others of the ideas and information the author communicates.

Originality goes toward copyrightability of a work, and it is an admittedly low threshold, requiring only “independent creation plus a modicum of creativity.”3Feist Publications v. Rural Telephone Service, 499 US 340,346 (1991). As the House Report for the 1976 Copyright Act explains, the standard for originality, “does not include requirements of novelty, ingenuity, or esthetic merit.” The distinction between ideas and expression that is discussed later does more work in an infringement analysis, particularly when there has been nonliteral copying or copying of less than an entire work. The distinction between ideas and expression should over time naturally result in an equilibrium between protecting legitimate interests in expressive works while permitting the necessary borrowing from existing works that new works rely upon. Although some individuals may idiosyncratically demand more protection than they deserve, in the aggregate, claims between owners of existing works and creators of new works will balance out. This is especially true when you consider the existence of firms with larger copyright portfolios—they will invariably find themselves on both sides of the “v.” in infringement suits, and so it is in their best interests not to be overly aggressive when arguing what can be protected or what can’t be protected under copyright law.

Third, much of the work balancing between copyright and free speech interests is achieved through the exclusive rights. The Supreme Court has identified two “built-in First Amendment accommodations” to copyright law.4Eldred v Ashcroft, 537 US 186 (2003). One of these is fair use, an exception to exclusive rights, but the other is the idea-expression dichotomy, which acts to define the scope of the exclusive rights themselves. But along with these safeguards, the Court has also recognized that copyright itself promotes free expression. In Harper & Row, the Court called copyright “the engine of free expression” and explained, “By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” Without these marketable rights, the creation and dissemination of certain types of works would be chilled.

A prime example involves journalism. In looking at whether news clipping service Meltwater’s unauthorized copying of news material from the Associated Press was a fair use, the Southern District Court of New York said the public interest weighed against Meltwater:

Paraphrasing James Madison, the world is indebted to the press for triumphs which have been gained by reason and humanity over error and oppression. Investigating and writing about newsworthy events occurring around the globe is an expensive undertaking and enforcement of the copyright laws permits AP to earn the revenue that underwrites that work. Permitting Meltwater to take the fruit of AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy.5Associated Press v. Meltwater, 931 F.Supp.2d 537, 552 (SDNY 2013).

Finally, we do indeed have explicit limitations and exceptions on authors’ rights, such as fair use or fair dealing. These exceptions are absolutely necessary and important, but they do most of the work outside the core of copyright protection.

A view of balance that pits authors rights against the public interest thus ignores the law’s internal balancing mechanisms and is ultimately detrimental to the goals of copyright. By keeping in mind the intertwined nature of the private right and the public gain, we can better reach a balanced approach. Such balance would ensure that rights are clear, marketable, and enforceable. It would, for example, disfavor government intervention in the form of compulsory licensing, rate setting, etc., except when there is demonstrable market failure; it would encourage cooperation between rightsholders and OSPs and others in the online ecosystem to minimize online infringement; it would provide access to meaningful remedies for individuals and small businesses. A balanced copyright system would, in short, create a vibrant, diverse culture that enriches the public sphere by protecting creators’ right to seek their fair share.

References

References
↑1 347 U.S. 201 (1954).
↑2 See, for example, Tom Sydnor, Can Economic and Historical Analyses End Copyright Law’s Property/Monopoly Disputes?, American Enterprise Institute (2015); Stan Liebowitz, Is the Copyright Monopoly a Best-Selling Fiction? (2008).
↑3 Feist Publications v. Rural Telephone Service, 499 US 340,346 (1991). As the House Report for the 1976 Copyright Act explains, the standard for originality, “does not include requirements of novelty, ingenuity, or esthetic merit.”
↑4 Eldred v Ashcroft, 537 US 186 (2003).
↑5 Associated Press v. Meltwater, 931 F.Supp.2d 537, 552 (SDNY 2013).

Friday’s Endnotes – 01/29/16

By , January 29, 2016.

White Paper on Remixes, First Sale, and Statutory Damages — The Department of Commerce’s Internet Policy Task Force, led by the USPTO and NTIA, released its anticipated White Paper on copyright policy yesterday, highlighting a number of recommendations regarding the legal framework for remixes, first sale in the digital environment, and statutory damages.

The High Price of Free — The focus of this article is on web developers, but many of the points are relevant to other creative disciplines. “We know that not paying speakers and not covering speaker expenses causes events to become less diverse. The ability to give time, energy and professional skills free of charge is a privilege. It is a privilege that not everyone has to begin with, but that we can also lose as our responsibilities increase or as we start to lose the youthful ability to pull all-nighters. Perhaps we begin to realize how much that free work is taking us away from our families, friends, and hobbies; away from work that might improve our situation and enable us to save for the future.”

Some Pirate Sites Have Little Respect for their Users — Torrentfreak: “It’s a bitter pill but it needs to be said. While there are thousands that don’t, there are large numbers of pirate sites that fall way below the standards those who pay their bills deserve. Why some site operators sink to these levels isn’t always clear, but aggressive redirects, misleading advertising, fake virus warnings and malware are always unacceptable.”

Cosplay, Copyright and Fair Use — “Despite Public Knowledge’s attempt to have cosplayers believe otherwise (and support them and Star Athletica), cosplayers are not going to feel the brunt of any decision the Supreme Court makes on the designs of cheerleading uniforms. The highest court of the land is not ‘quite literally deciding the test by which the legal status of cosplay will be judged.'”

Torrenting the Oscars 2016 — John August, on a piracy group’s “apology-slash-justification” following a leak of 15 Oscar screeners: “So by leaking the movie before it was released, then backtracking, they’re pretty sure Miramax will make its money back because imaginary math is magic.”

A Primer on Oscar’s Sound Editing and Mixing Categories — Speaking of the upcoming Oscars (February 28), Variety explains two of the categories: sound editing and sound mixing. Contrary to common misconceptions, the former involves editing sounds while the latter involves mixing sounds.

Aereo takes its tiny antennas to Opposite Town

By , October 29, 2012.

Last September, broadcasters and amici supporters filed their briefs in the Second Circuit in WNET v Aereo. Within the last week or so, Aereo and its amici began to file their briefs in response. You can read Aereo’s brief here, as well as a brief from the EFF, Public Knowledge and the Consumer Electronics Association (CEA) and a brief from law professors.

Aereo, if you recall, is an online service which, like cable or satellite TV, retransmits broadcast television signals to paying services. But, unlike cable and satellite providers, Aereo is not licensed to publicly perform these copyrighted works because, as it argues, the equipment it uses is really, really tiny.

I’ve previously written about Aereo here. In July, the district court denied a preliminary injunction against Aereo. The broadcasters appealed that decision, and I’ve written about why I believe the court erred in denying the injunction. Oral arguments are scheduled for November 30th.

But as the appeal wends its way through the Second Circuit, I wanted to take a look at some of the arguments favoring the court’s decision both in the recently filed briefs and online. The reaction from amici and bloggers in support of Aereo is actually quite astonishing. So astonishing, in fact, that it seems at times that we’ve left the real world and entered Opposite Town. Let’s take a look at some of these arguments.

Aereo merely provides TV reception equipment for personal use.

A good deal of effort is spent characterizing Aereo as something other than your typical cable provider. It’s merely a facility where TV viewer’s can rent equipment similar to what they would use at home to watch and record their favorite shows, which certainly doesn’t require licensing. This is the crux of Aereo’s argument on appeal:

Aereo provides a technology platform that enables consumers to use remotely-located equipment, including an individual antenna and digital video recorder (“DVR”), to create, access and view their own unique recorded copies of free over-the air broadcast television programming. Essentially, for a small monthly fee, consumers are able to take advantage of current technology to use remotely-located “in the cloud” equipment functionally identical to that which they would otherwise have and use in their home for those same purposes.

Others have framed Aereo’s service this way as well. David Post, one of the law professors who signed the amicus brief, wrote in a blog post last week that “Aereo is in the business of allowing consumers, in effect, to rent a little teeny TV antenna that can pick up over-the-air broadcasts, and a little teeny bit of disk storage space, and then to record over-the-air programming for later viewing over the Net.” Last spring, Public Knowledge wrote, “No one thinks that it’s a public performance if a TV viewer attaches an antenna to his TV. Nor does a store like Radio Shack, who might have sold him the antenna, infringe any copyrights by doing so. Aereo is a bit different than this–it rents out antennas to TV viewers in the New York area, but keeps them in their own facility (which gets better TV reception).” And in its brief with the EFF and CEA,  it argues that Aereo’s service is no different from “the classic form of TV reception with a living-room set and a personal antenna, with the only difference being the length of the wire between antenna and set (or the replacement of that wire with an equivalent self-to-self transmission over the Internet).”

In effect, Aereo and its amici argue that its service — which receives transmissions of TV broadcast signals and retransmits them to paying subscribers — is the opposite of a cable service provider — which receives transmissions of TV broadcast signals and retransmits them to paying subscribers. 117 USC § 111(f)(3). But note that services which retransmit over the internet do not fall under this definition; WPIX v IVI, No. 11-788-CV (2012).

Aereo’s own terms of service even belie its characterization of its service as merely renting remotely-located equipment controlled by users. It grants users only a “non-exclusive, non-transferable, limited right to use and control” its equipment, it prohibits subscribers from using its equipment for “any commercial purpose whatsoever.” Aereo “retains exclusive ownership of all right, title, and interest in and to the Equipment, Site, and the Aereo Platform” and does not allow any subscriber to “reverse engineer, disassemble, modify, decompile and/or create derivative works of the Site, Equipment and/or the Platform.” And finally, “You may not transfer or attempt to transfer material available on Aereo’s Site and/or through your use of the Equipment and/or Platform, to another storage device or medium other than the DVR Equipment for your personal use.” It would seem that the difference between Aereo’s service and a viewer’s personal equipment is far more substantial than “the length of the wire.”

Aereo should win because of copyright’s technological neutrality.

Copyright law should be technologically neutral — I agree that this should be the default rule. Some of Aereo’s supporters have used this point to argue in favor of the service. Duke University Scholarly Communications Officer Kevin Smith, for example, has said that “such neutrality would seem to favor Aereo” in a recent post.

How so? Aereo’s primary argument is that it uses a lot of little antennas instead of one big antenna. CATV, cable providers, and satellite, retransmit broadcast signals through their systems to their subscribers. Aereo retransmits broadcast signals through its system to its subscribers. The former must have permission from the copyright holders to do so. Aereo argues it does not need permission, solely because the technology it uses is somewhat different.

This sounds like the exact opposite of “technological neutrality.”

Aereo assists in cord-cutting.

Indiewire asks, “Is Aereo the answer for cable cord-cutters who still want access to live TV?” Duke’s Kevin Smith says, “as someone who has long wanted to ‘cut the cable,’ I might be interested in the Aereo service if it is upheld.” Mashable says “Aereo makes cutting the cord even easier, and cheaper.” Wired describes Aereo as “one small step for cord cutting.”

Let me see if I got this straight. Cable TV provides access to broadcast TV for a monthly fee. Aereo provides access to broadcast TV for a monthly fee.

Switching from one to the other sounds like the exact opposite of “cord-cutting.”

Aereo is innovative.

Aereo and its supporters go to great pains to cast the service as an “innovation.” The law professor amicus brief, for example, frames this case as one involving “new technologies” and “major technological innovations.”

The TV antenna is not a new technology. Internet streaming is not a new technology.

Retransmitting TV broadcasts is not innovative — CATV has been around in the US since at least 1948 and has required a license since the Copyright Act of 1976. 217 USC § 111, P.L. 94-553 (Oct. 19, 1976). And Aereo is not the first website to try retransmitting broadcast signals over the internet without permission — Canadian company iCraveTV tried a similar service over a decade ago. 3A court subsequently enjoined iCraveTV’s streaming service.

The only “innovation” displayed by Aereo is the claim that it has figured out a way to do what cable providers do without having to pay license fees like they do. But building a system that does the same thing as something invented over 60 years ago sounds to me like the opposite of innovation. Here, “innovation” seems like merely a code word for “infringement.”

Aereo is furthering the public interest.

The EFF resurrects its argument that exempting Aereo from copyright liability furthers the public interest, an argument rejected by the district court even though it denied the preliminary injunction. According to the EFF, there is a public policy interest in making television broadcasts freely accessible to the public. But Aereo charges for this service. This sounds to me like the opposite of free.

Courts should rewrite the law to prop up Aereo’s business model.

Much ink has been spilled over a brief filed in favor of broadcasters by former Register of Copyrights Ralph Oman. In it, Oman argued that “It is nothing less than a major new exception, which could permit streaming of copyrighted works over the Internet … Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established.”

Because copyright law is entirely a creature of statute, it is up to Congress to define its scope rather than courts. This has been a defining feature of copyright law, and one that has often acted to the detriment of copyright holders. 4See, for example, Sony v Universal City Studios, 464 US 417 (1984); Fortnightly v United Artists Television, 392 US 390 (1968); White-Smith Music Publishing v Apollo, 209 US 1 (1908). But, it seems, when this principle acts instead to the detriment of an economic user of copyrighted works, outrage ensues.

Much of this outrage stems from a severe misconstruction of Oman’s arguments. Peter Suderman at the Reason blog, for example, believes Oman is suggesting that inventors must “ask Congress for permission before releasing any new product.” Part is also based on a logical fallacy; says Suderman, “Aereo designed its system to be technically legal.” But that begs the question that Aereo’s interpretation of copyright law and its design based on that interpretation is, in fact, “technically legal.”

Duke’s Kevin Smith also takes exception to this portion of Oman’s brief, writing, “This is an extraordinary statement, suggesting that the Copyright Act was intended to force all innovators to go to Congress before beginning any service that might threaten some established form of exploiting the rights of copyright holders.”

That sounds to me quite ordinary. If Congress passes a law, and a business doesn’t like that law, it has to go to Congress to change the law. I mean, what’s the alternative? Corporations should be allowed to break the law? Perhaps that’s the thinking in Silicon Valley, but I respectfully disagree; corporations should be subject to laws just like everybody else.

References

References
↑1 17 USC § 111(f)(3). But note that services which retransmit over the internet do not fall under this definition; WPIX v IVI, No. 11-788-CV (2012).
↑2 17 USC § 111, P.L. 94-553 (Oct. 19, 1976).
↑3 A court subsequently enjoined iCraveTV’s streaming service.
↑4 See, for example, Sony v Universal City Studios, 464 US 417 (1984); Fortnightly v United Artists Television, 392 US 390 (1968); White-Smith Music Publishing v Apollo, 209 US 1 (1908).

Aereo, ivi, and the Public Interest in Protecting Copyright

By , August 29, 2012.

Two court decisions involving online services transmitting broadcast television have recently been released. Both — WPIX v ivi in the Second Circuit and ABC v Aereo in the Southern District Court of New York — involve companies sued by television broadcasters for providing,in essence, the same type of service. However, the technology behind the scenes of each differs, as well as the legal issues involved.

And while both involved preliminary injunctions, they each resulted in different outcomes — Aereo succeeded in convincing the district court to deny an injunction while the Second Circuit upheld an earlier-granted injunction against ivi.

But while the differences in the two cases may outweigh the similarities, they do share one thing in particular that is, perhaps, most relevant: in both cases, the court reiterated the public’s strong interest in ensuring effective copyright protection.

WPIX v ivi

Billed as “the first internet cable network,” ivi launched in 2007. The service captures broadcast television from several markets, offering live viewing over the internet for a monthly fee. The company was sued in 2010, and the district court granted a preliminary injunction against it last year. On Monday, the Second Circuit upheld the injunction.

ivi argued that it is a “cable system” under the Copyright Act. Section 111 of the Act creates a compulsory license for “cable systems”, as defined in the Act, to retransmit television broadcasts — so long as a “cable system” complies with the statute and pays rights holders according to rates set by law, it can retransmit broadcasts without the consent of broadcasters.

Because the definition of “cable system” is not entirely without ambiguity, the Second Circuit turned to the legislative history of the section, as well as the Copyright Office’s interpretation of the law. Both clearly showed that the definition of “cable system” was never intended to encompass services like ivi. This conclusion is strengthened by the fact that, as the court notes, the definition of “cable system” must be read narrowly since it involves government intrusion into the marketplace and acts in derogation to the exclusive property rights granted by the Copyright Act.

ABC v Aereo

Aereo provides paid online access to New York City television stations broadcast over the air, including all the major networks (the service is currently only available to New York City residents). Unlike ivi, however, the service offers both live viewing and DVR-style functionality, allowing users to pause and record programs. Aereo operates an array of tens of thousands of antennae, each the size of a dime. When users access the service, Aereo dynamically assigns them a unique antenna.

Aereo hinges its defense on the nature of its setup. Relying on the Second Circuit’s Cablevision decision, Aereo argues that it essentially acts as a remote device controlled by its users. Because any individual transmission is going to a unique individual, says Aereo, any performance of television broadcasts is not public and thus not within the scope of any copyright holder’s exclusive rights. The district court concluded that Aereo’s arguments were strong enough to defeat the necessary likelihood of success on the merits that the television broadcasters must show in order to succeed on a motion for a preliminary injunction.

The Public Interest

To grant a preliminary injunction, courts consider four factors: the plaintiff’s likelihood of success on the merits, the irreparable harm that would result in the absence of an injunction, the balance of hardships between the plaintiff and defendant in the presence or absence of an injunction, and the public interests at stake. Despite the different legal issues involved, and despite the injunction in Aereo being denied because plaintiffs did not demonstrate a likelihood of success on the merits, both courts noted that the public interest favored granting an injunction.

The Aereo court puts it this way: “There is a strong public interest in the copyright system’s function of motivating individuals to make available their creative works and increase the store of public knowledge.”

The court also knocked down arguments that the public interest would be served by keeping the Aereo service running. Said the court, “There is a logical gap—one that Aereo and amici fail to bridge— between any public interest in receiving broadcast television signals generally and the public interest in receiving them from Aereo’s particular service.”

Interestingly, the court addresses arguments raised by the EFF and Public Knowledge in their amicus brief. “[A]mici argue that there is a public interest in the free access to and reception of broadcast television. The Court notes, however, that even setting aside the other lawful methods through which consumers may access broadcast television even in Aereo’s absence, Aereo is a business and does not provide ‘free’ access to broadcast television [Emphasis added].” The court continues even more stringently, “Amici‘s argument thus bears an unacceptable resemblance to advocacy that copyright infringement of broadcast television is generally in the public interest, a point on which this Court cannot agree.”

In ivi, the Second Circuit explores the public interests involved at length, in a section worth repeating in full:

Here, streaming television programming live and over the Internet would allow the public — or some portions of the public — to more conveniently access television programming.

On the other hand, the public has a compelling interest in protecting copyright owners’ marketable rights to their work and the economic incentive to continue creating television programming. Inadequate protections for copyright owners can threaten the very store of knowledge to be accessed; encouraging the production of creative work thus ultimately serves the public’s interest in promoting the accessibility of such works.

Plaintiffs are copyright owners of some of the world’s most recognized and valuable television programming. Plaintiffs’ television programming provides a valuable service to the public, including, inter alia, educational, historic, and cultural programming, entertainment, an important source of local news critical for an informed electorate, and exposure to the arts. Plaintiffs’ desire to create original television programming surely would be dampened if their creative works could be copied and streamed over the Internet in derogation of their exclusive property rights.

Further, there is a delicate distinction between enabling broad public access and enabling ease of access to copyrighted works. The service provided by ivi is targeted more toward convenience than access, and the public will still be able to access plaintiffs’ programs through means other than ivi’s Internet service, including cable television. Preliminarily enjoining defendants’ streaming of plaintiffs’ television programming over the Internet, live, for profit, and without plaintiffs’ consent does not inhibit the public’s ability to access the programs. A preliminary injunction, moreover, does not affect services that have obtained plaintiffs’ consent to retransmit their copyrighted television programming over the Internet.

What’s next

ivi has indicated in the press that it doesn’t plan on giving up just yet. That could mean an appeal or, more likely, continuing in litigation at the district court level. Though with its service still offline — the lower court last year denied its motion to stay the injunction while its appeal was pending, meaning it hasn’t been able to operate for over a year — it is uncertain how much longer it will stick with its plan.

The Aereo decision has been appealed to the Second Circuit. The appeal will be closely watched since Aereo is the first internet rebroadcaster to survive past the preliminary injunction stage. For example, earlier this month, Filmon.com, a similar service that was sued in October 2010, agreed to shut down its internet broadcasting service as part of a settlement with broadcasters. Within the past couple years, other services like VuiVision and iCraveTV have been quickly shuttered by courts. 1H/T to Andrew Berger for making those decisions available at IP in Brief.

References

References
↑1 H/T to Andrew Berger for making those decisions available at IP in Brief.

Friday’s Endnotes – 03/11/11

By , March 11, 2011.

A Blogging Hiatus — Ben Sheffner has put his site, Copyrights and Campaigns, on hiatus after his recent move from NBC Universal to Content Protection Counsel at the MPAA. Since the end of 2008, Ben has brought solid, in-depth reporting and analysis on copyright issues from a reasonable, pro-copyright-owner perspective. His voice will be missed in the blogosphere.

Stuck on Rewind — The Copyright Alliance takes aim at a remark by Public Knowledge about the film industry’s supposed fear of technology. As the Alliance’s Sandra Aistars responds: “Seriously? The notion that the creative world is somehow afraid of, opposed to or otherwise unable to co-exist with a 21st Century technology world is about as up-to-date as the Betamax recorder.”

Copyright PSA for the Reel Challenge via Ray Dowd’s Copyright Litigation Blog. More from the filmmakers behind the video at http://www.yellyfishblog.blogspot.com/

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Golan v. Holder: Supreme Court to Review Copyrighting Works in Public Domain — Edward Lee (a former professor of mine) shares some thoughts on the case he helped bring which was recently granted cert by the Supreme Court. I wrote a brief summary of the case last week.

Are Canada’s copyright laws friendly or unfriendly towards wealth destroyers according to Prof. Geist? — Barry Sookman thoroughly examines the inconsistent and contradictory claims of law professor Michael Geist concerning litigation between the CRIA and IsoHunt. Worth a read, especially since many of Geist’s copyright claims are repeated as gospel among copyright critics.

Isaac Newton’s Shamefully Unpublished Calculus Book — I’m currently reading a book on the history of mathematics and came across this gem of an article from the mid-90s. For over a decade, we’ve heard of how computers and the internet will free artists from the evils of book publishers (or record labels, or film studios, etc). Much of the talk is hype, but sometimes, as this article demonstrates, things are just flat-out made up.