In 1966, the cable TV industry warned that if it was brought within the scope of copyright law, it “could very well be forced out of existence to the great injury to the public interest, and with no corresponding benefit to copyright owners, broadcast stations, or the public.” 1Statement of Frederick W. Ford, President, National Community Television Association, Inc.; Accompanied by Alfred R. Stern, Chairman, Board of Directors; and E. Stratford Smith, Special Counsel, National Community Television Association, Inc., Hearings before the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, US Senate, 89th Congress, Pursuant to S. Res. 201 on S. 1006, pg. 86 (1966).
That didn’t happen; in fact, cable television is not only doing quite well but has become the producer of some of the most amazing and compelling programs today, benefiting all.
But nearly a half century later, Aereo has resurrected the same arguments to justify its position as a for-profit middleman. According to Aereo’s CEO, holding the company liable “would impair cloud innovation and threaten the myriad benefits to individuals, companies, and the economy at large of the advances in cloud computing and cloud storage.”
A Supreme Court ruling against Aereo won’t spell the end of cloud computing — Over at Truth on the Market, Geoffrey Manne, Ryan Radia, and Ben Sperry explain why a holding finding Aereo liable for publicly performing copyrighted works won’t mean cloud computing services would face new liability.
Google, once disdainful of lobbying, now a master of Washington influence — A comprehensive and sobering look at how stunningly powerful the search giant has grown in only a few short years. “‘Google’s influence in Washington has chilled a necessary and overdue policy discussion about the impact of the Internet’s largest firm on the future of the Internet,’ said Marc Rotenberg, a Georgetown University law professor who runs the Electronic Privacy Information Center, a watchdog and research organization.”
Digital Public Library of America to add millions of records to its archive — Ars reports, “Today marks the Digital Public Library of America’s one-year anniversary. To celebrate the occasion, the non-profit library network announced six new partnerships with major archives, including the US Government Printing Office and the J. Paul Getty Trust.”
World IP Day – Movies: A Global Passion — If you’re in DC next Wednesday, do check out the Copyright Office’s World IP Day program, in partnership with the Copyright Alliance, featuring multi-award winning feature film and television director Matthew Harrison, two-time Daytime Emmy Award-nominated actor Robert Newman, and film scholar Mike Mashon, Head of the Moving Image Section at the Library of Congress.
References
| ↑1 | Statement of Frederick W. Ford, President, National Community Television Association, Inc.; Accompanied by Alfred R. Stern, Chairman, Board of Directors; and E. Stratford Smith, Special Counsel, National Community Television Association, Inc., Hearings before the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, US Senate, 89th Congress, Pursuant to S. Res. 201 on S. 1006, pg. 86 (1966). |
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Terry, the problem with your reference to cable arguments in 1966 is that when Congress brought cable within the scope of copyright law in 1976, they did so by granting them a royalty-free compulsory license for the predominant business of cable operators (local retransmission of local stations). They created a royalty-bearing compulsory license for distant signal importation. It’s questionable such was actually the cause for demise, but it is the case that, today, such distant signal importation has essentially disappeared from the cable landscape.
So what is it that you are pointing to in suggesting that cable companies in 1966 were being unreasonably alarmist? Perhaps they were, but the way that they were brought within the scope of copyright, with a compulsory license that was mostly royalty-free, was hardly the scenario that cable companies were warning of.
On the other hand, content providers probably hold the record for the most frequent and voluminous warnings of imminent demise. And in contrast to your cable example, we actually have seen the “worst case” legal outcomes that content providers warned of come about. Remember this?
“…if petitioners are permitted to continue their activities without compensating respondents and others similarly situated, public access to television programming, far from increasing, will actually diminish. For, without some mechanism to compensate copyright owners for the unlimited taking and unsupervised use of their creative property, the economic incentive to risk enormous sums to produce high-quality television programming will be substantially undermined. This in turn will result in the production of cheaper, lower-quality television programs and a refusal to license popular, top-quality theatrical motion pictures for exhibition and “free” viewing on commercially sponsored television, thereby prejudicing the entire television viewing public, VTR and non-VTR owners alike.”
In case anybody has forgotten, the content providers actually lost Sony. There were no mitigating mechanism or compensation whatsoever to their supposed doomsday scenario of “unlimited taking and unsupervised use.” And yet, in stark contrast to their dire warnings, the quality of all television, including free over-the-air broadcasts, got much better, not worse, in the wake of the Sony decision and VCRs.
Neither of these analogies is directly on point, of course. Local broadcasters would have had every incentive in the 1960s and 1970s to reach some accord with with cable, because ultimately, what cable was doing was highly beneficial to their underlying business, and cable was the only game in town that could so help them. The same cannot be said of either Aereo or cloud services more generally, today.
As for content providers, VCRs were actually breaking new ground in the 1980s, and one can appreciate the uncertainty that such created. On the other hand, free, private reception of over-the-air content is hardly breaking new ground today. One can certainly understand if broadcasters would prefer to be able to charge twice for their signals, rather than charging just once, if they can get away with it. But that doesn’t change the fact that by choosing to be broadcasters, they have agreed to allow the public free access to receive their over-the-air broadcasts, and the deployment of technology to make that easier, rather than harder, can hardly be seriously viewed by anyone as an existential threat for them.
In case anybody has forgotten, the content providers actually lost Sony.
I have not forgotten. And in the Aereo case, the Sony case is immaterial. Again, Aereo intercept a signal before decoding. In Sony, the signal is decoded and then reproduced within “normal circle of family and its social acquaintances” (see 2 MELVILLE B. NIMMER, Nimmer on Copyright § 8.14[C], at 8-169 (1993))
Give it a rest will ya. Aereo has no Plan B. Thanks.