International Music Organizations Claim Aereo Must Be Illegal Because Of International Trade Agreements

from the those-darn-international-obligations dept

For many years, we’ve highlighted how copyright maximalists have abused the international trade process to expand copyright monopolies around the globe. If you’re interested in the history there, I highly recommend the book Information Feudalism: Who Owns the Knowledge Economy?, which details much of the history. Defenders of this policy love to pretend that international trade agreements can’t bind US law, but reality is quite different. Time and time again, we’ve seen maximalists use international agreements to get their way either in ratcheting up copyright law even further, or pressuring courts into certain positions. This is one of the reasons (one of many) that we’re so concerned about new agreements like the TPP and TTIP/TAFTA. Even if the USTR claims (incorrectly) that nothing in them goes beyond US law today, they can not only limit the changes Congress can make to copyright and patent law, but these issues can show up in court cases, potentially hindering innovation.

Here’s a perfect example. We’ve been covering the Aereo case for quite some time, and as the Supreme Court prepares to hear the case in April, a bunch of international music organizations, led by the IFPI (basically the international version of the RIAA), have filed an amicus brief that pretty clearly says that the Supreme Court has to rule against Aereo because of existing international trade agreements that the US has signed. No joke. The brief directly claims that the appeals court ruling that found in favor of Aereo “places the United States in violation of its multilateral treaty commitments,” as well as “its bilateral and regional agreements,” and further that the Supreme Court has a duty to find against Aereo in order to respect the US’s “treaty commitments.”

Reading through the brief, you can see just how much copyright maximalists have succeeded in putting together a huge mess of international agreements (often built around issues totally unrelated to copyright, with a few copyright specific ones thrown in) that these groups can now claim require the Supreme Court to outlaw new innovations like Aereo. It further cites rulings in the EU and Canada that it suggests require the Supreme Court to follow suit. While there are some Justices who have made it clear time and time again that they don’t care what foreign courts say, others have shown a willingness to follow suit.

Either way, this brief yet again highlights just how nefarious these international trade agreements can be, and how they can come back to bite new innovations years later. Defenders of copyright maximalism will insist that things like TPP and TTIP/TAFTA will have no impact on US law, but if those agreements come into force, you can bet that future US innovations will get stomped out of existence with certain players pointing to those agreements as a reason they need to be shut down.

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Companies: aereo, ifpi

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Comments on “International Music Organizations Claim Aereo Must Be Illegal Because Of International Trade Agreements”

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Anonymous Coward says:

No such thing as "international law" in the United States

I know the Supreme Court invoked the importance of international agreements in its recent, misguided decision to uphold the government’s extension of copyright to cover works in the public domain, but they still based their ruling on the text of the law rather than the text of international agreements. US law and the US Constitution both take precedence over international agreements.

Anonymous Coward says:

Re: Re: No such thing as "international law" in the United States

No. What I mean is that the text of an international agreement has no effect unless ratified by the US Senate, and then only as codified into US law. The law may differ from the text of the agreement, in which case it’s the text of the law which applies.

Mike Masnick (profile) says:

Re: Re:

It makes me cringe to see Aero described as “innovative”. It is a horrendously inefficient means of receiving broadcasts, with the one redeeming quality being that it is less horrendously inefficient than most other means imposed by the monopolistic regime of copyright.

Innovative, to me, means building something that the public wants. Aereo seems to qualify.

Anonymous Coward says:

Re: Re:

Sure, it’s unlikely that SCOTUS is going to invalidate a bunch of our foreign trade agreements. What they could say, though, is that if two acts of Congress seem to conflict then it’s necessary to consider legislative history and intent.

Our federal laws were debated and passed by the legislature; our foreign trade agreements tend to be negotiated by the executive branch, then ratified by the legislature. I’m personally hoping for a ruling that federal law trumps international trade agreements, especially for agreements where Congress just signed off on take-it-or-leave-it deals negotiated by other parties. (The alternative, where international law served as a binding constraint on the legislature, would also be an interesting ruling, but that’s not going to happen any time soon.)

Realistically, the current court is likely to rule on a narrow procedural issue and to ignore the larger issues entirely. They’re fond of that.

Paul (profile) says:

If Aero wins

If Aero wins, I am so starting a company with a model really close to it.

I will buy hundreds of small DVD players, The smaller the better. I will then load requested DVDs into the players and rent out the DVD, player, and Player control so that someone over the net can watch the DVD.

This process will be 100% legal because:
The law says I can rent DVDs
The law says I can rent DVD players.
The law says that personal in home consumption is not a public performance.
The law will say (after Aero) that a cord going over the internet does not make the above 3 actions illegal.

After a while I’d argue in court that the DVD is simply a physical representation of the license I hold and as such I should be able to rent out the movie based on held licenses instead of physical DVDs in actual players. Thus as long as I can account for each license with a physical DVD, and never show more copies then I have in storage, I would still be legal.

This would ultimately allow me to have movies newer than Netflix, and a back catalog that content providers can’t touch.

Thanks Aero!

jupiterkansas (profile) says:

Re: If Aero wins

Sounds great in theory, but it would be far more expensive than what Aereo is doing because you’re buying more expensive equipment and even more expensive content.

If you’re talking one movie per player, that means only one person could watch it at one time – anywhere in the world. So you’ll need hundreds of copies of a single movie, with hundreds of players to play them, just to satisfy the market. Perhaps thousands for a hot title to adequately meet demand.

So ultimately, how much could you rent the movies for and could it compete with Netflix on price?

Mike Masnick (profile) says:

Re: If Aero wins

I will buy hundreds of small DVD players, The smaller the better. I will then load requested DVDs into the players and rent out the DVD, player, and Player control so that someone over the net can watch the DVD.

Been there, done that, killed by lawsuits:

That one shut down after losing at the lower courts, unable to keep fighting. But, actually, I agree that what you describe should be perfectly legal.

Paul (profile) says:

Re: Re: If Aero wins

Sadly this means that the very first step in a business like this is to sue for declaratory judgement.

As far as a business model its sound as per your link, each customer gets his own DVD player, and Netflix and company already showed you can have huge stores of DVDs. The only change is that you’re delivering the DVD to a bank of players in a Data center instead of across the country.

Of course this required Aero to win AND lawyers, lots of lawyers.

cpt kangarooski says:

These things put pressure on Congress, that’s true. But ultimately, while the executive branch can cause the United States to enter into and be bound by a treaty, it cannot obligate Congress to pass legislation that conforms with or enables that treaty, nor can it obligate the courts to give a treaty more weight than the Constitution entitles it to, which is at best equal with federal law (but inferior to the Constitution itself), and often less than that.

If Congress refuses to enact laws that bring the country into compliance with a treaty, it may cause a headache for the executive branch, but that’s not the problem of Congress.

That One Guy (profile) says:

Foreign companies and interests all but demanding that the Supreme Court rule a particular way, in order to ‘fulfill US obligations’ to the various ‘trade agreements’ and similar treaties…

Yeah, whenever any of the liars start going on about how ‘trade agreements have no binding effect on US law’, I can’t help but admire their skill, to be able to tell something that completely and utterly wrong, something so blatantly a lie, all without cracking a smile or snickering, that takes some real control.

Now I hope the SC rules on the side of sanity even more, just to see the executive whine about how much ‘trouble’ it’s going to cause them, what with actually having to put US laws above foreign ‘obligations’.

ECA (profile) says:

i wondered why

“Numerous international agreements provide a
right of communication to the public, which applies
even when the technology used to effect the transmissions enables members of the public to access works
or performances of works “from a place and at a time
individually chosen by them.”

1. THE PUBLIC didnt know or VOTE for this, so WHY IN HELL, did our REPS do it??
2. this is the reason we dont have those CHEAP DVR/PVR systems in the USA..
SOMEONE decided that the LAST format that we could use to record with is/was the VCR.
The Current DVR/PVR selection is Expensive(mostly) and VERY low quality..

I said before..CORPS dont like change..They like BUILDING it one time/they like selling you the SAME crap in a new box/Every time you look at WHAT they built, its 2-5 generations OLD..
And then you wonder WHY we are still dealing with INTEL serial based hardware…when we are 30 years behind in computer tech.

Anonymous Coward says:

It’s no wonder they want trade deals with heavily authoritarian nations like Vietnam. It’s a conspiracy to lower the world to its lowest common freedoms, one block at a time.

It also highlights the industry’s hypocrisy. They shame anti-globalists by accusing them of being anti-competitive, but when they have to compete with the likes of Aereo or the Internet, they squeal like the pigs they are and shower fellow pigs with money until they get their way.

If these types of “people” succeeded for good prior to the invention of automobiles and airplanes, we’d still be manning horse-driven buggies, and airplanes would only exist in fiction. Don’t hold us back as a species just because you can’t accept that the CD is dead.

BernardoVerda says:

Re: Goes both ways

Copyright isn’t inherently bad, just inherently prone to abuse, if not kept on a tight leash, and under control in its proper place — so that copyright serves the interest of general society.

Unfortunately, these days maximalist copyright holders are currently holding the leash, and keeping the general public under control in its place instead, serving the interest of large corporations.

And those copyright abusers are even largely getting away with the pretence that this situation is supposedly serving the public interest.

Anonymous Coward says:


If Aereo loses despite following the law, the only ones left will be the ones with little regard to the law.

It’s trivial to capture a digital over-the-air transmission (a common laptop with a dongle can do it), send it to a server (possibly using seven proxies to hide the source), and multiplex it to hundreds of viewers. Add some way of making money (ads? subscriptions? donations? you decide), and you have a working rebroadcaster, who doesn’t have to care about things like geographical restrictions.

Much like iTunes and similars are the only real threat against online music sharing, Aereo and similars are the only real threat against online TV rebroadcasting.

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