A Plea about Arts Piracy in the Theater â€” This week’s must read. “To put it another way,Â playwrights will only generate new plays insofar as they can afford to keep doing it, and only insofar as they know that the community is protecting their workÂ even when theyâ€™re not around to police it.”
Copyright experts side with broadcasters in Aereo fight â€” This week, amici supporting broadcasters in ABC v. Aereo filed their briefs at the Supreme Court. Included among them was this one by copyright scholars David Nimmer and Peter Menell. Be sure to also check out the solidly written and well-reasoned brief from the US Copyright Office and DOJ as well as one taking the international perspective from a whopping 15 separate creative associations and eight IP scholars.
Guest post: Copyright’s Public Performance Right, Cable Television, and Aereo â€” Speaking of Peter Menell, I was delighted to see him contribute a version of his amicus brief argument to the Copyright Alliance’s blog.
Google Judge to Rule on Media Access to Documents after March 7 â€” Google is currently facing claims that it illegally accessed private emails. While the First Amendment normally requires court records be publicly accessible, Google has moved to seal certain documents filed in the lawsuit, arguing, in part, that “public disclosure of the Sealable Information would cause Google significant economic harm by revealing sensitive aspects of Googleâ€™s proprietary systems and internal decision-making processes to Googleâ€™s competitors, depriving Google of competitive advantages it has earned through years of innovation.” A group of media companies and organizations have intervened to oppose Google’s motion, a ruling of which can come as early as today.
Welcome to Googletown â€” This week’s feel good read.
The Oscar Selfie: Why Copyright Analysis Should Be Left To Copyright Lawyers â€” Some great perspective from Paul Fakler following the rash of silly and unnecessary copyright analysis of Ellen DeGeneres’ record-setting #selfie from Sunday’s Academy Awards. Speaking of which, The Ellen Selfie Was TV’s Victory, Not Twitter’s. “The Hollywood selfie seems like a giant business coup for ad-reliant Twitter, but it says more about the power of a century-old technology than anything else.”
Washington Attorney General Hits Cyberlocker for “Deceptive Practices” â€” An interesting new front opens in the fight against commercial exploitation of creators. According to Torrentfreak, “the AGO says that by failing to inform users that some of the content available from UMB may be copyrighted, UMB had engaged in ‘deceptive business practices’ contrary to the Consumer Protection Act.Â Furthermore, the AGO said that by charging a subscription fee to use the service, UMB had been ‘implicitly leading members to believe’ they were accessing content legally, something that was likely to confuse customers and lead them to unwittingly break the law.”
Weâ€™re being screwed by Spotify! David Byrne, R.E.M.â€™s Mike Mills and Cakeâ€™s John McCrea on the fight for artistsâ€™ rights â€” Cake frontman John McCrea speaks to Spotify about the reemerging artist rights movement.
The Echo Nest is Joining Spotify: What it Means to Me, and to Developers â€” “Today, weâ€™ve announced that The Echo Nest has been acquired by Spotify, the award-winning digital music service. As part of Spotify, The Echo Nest will use our deep understanding of music to give Spotify listeners the best possible personalized music listening experience.Â Spotify has long been committed to fostering a music app developer ecosystem. They have a number of APIs for creating apps on the web, on mobile devices, and within the Spotify application. Theyâ€™ve been a sponsor and active participant in Music Hack Days for years now. Developers love Spotify, because it makes it easy to add music to an app without any licensing fuss. It has an incredibly huge music catalog that is available in countries around the world. “
The Solicitor General’s brief in Aereo was anything but well-reasoned. In fact, it was internally inconsistent, contradicting itself. See:
Even ignoring that, its argument that technological details disqualify Aereo from being deemed an equipment rental is inconsistent with long and widely established notions of equipment rental. See:
Peter Menell’s and David Nimmer’s argument were hardly any better, with the very facts they presented failing to logically support their conclusions. For a detailed analysis, see:
Inconsistent. The Copyright Act of 1976 implies that [selling] intercepted signals to a public consumption (i.e.: a group of customers that require their own mutually exclusive private use from each other) is a violation of the statute (see 17 USC Â§ 111, Â§ 501, Â§ 502, Â§ 506 and Â§ 510). There are naught, nothing, zero 17 USC Â§ 512 exemptions for Aereo. And Bloomberg LP are comporting a criminal act in the process. Thanks.
The sweat equity you have in your myriad of articles concerning this case is quite remarkable. Even so, I do have to wonder how you can be so certain of your analysis and conclusions given that they are not at all universally shared, a point made only two clear when at least two well-known copyright law experts proffer opinions that do not merry up with yours. Maybe your view has merit, but then again I know the two experts and feel a high degree of confidence that they are not making things up as they go along in order to arrive as a predetermined outcome. Frankly, I would be more circumspect in criticizing opposing views.
If you read through the extensive exchanges I’ve had with Devlin, you’ll see that I have long allowed for the possibility that somebody could present an argument that would change my view, as when I recently wrote the following in another thread:
The Supreme Court might fundamentally misunderstand the underlying technology (as Denny Chin did), or they might use a legal fiction (as they have certainly done before), or conceivably they might even come up with some compelling theory that even I could accept (stranger things have happened), to conclude that Aereo is not an equipment rental, and deem Aereo an infringer.
But as time goes on, and we don’t see that, I grow more and more skeptical of the possibility.
I have not made any suppositions as to why or how Menell and Nimmer arrived at their conclusions. I have merely noted where their arguments and conclusions either don’t logically follow at all from the facts they present, or where their conclusions entail significant interpretation rather than being the obvious and inevitable result of applying logic to the facts (which they suggest them to be).
Menell and Nimmer surely know incredibly more than I when it comes to copyright, but they certainly don’t know any more than I when it comes to making logical inferences. (Actually, based on seeing their argument, I’d conclude they know less.)
You’ll note that I did not assert, either in my full analysis, or in my comment above, that Menell and Nimmer were surely wrong in their ultimate conclusion. I merely asserted that their argument was nowhere close to being the “airtight” case that they claimed it to be. And I stand by that.
If you’d like to challenge any specific points I made in my analysis, I’d be glad to hear your criticisms (either here, or as comments at my website — though note, I don’t get notified of comments here, so it can be a while before I become aware of them).