Aereo: Has No One Noticed It's Insane That We're Being Accused Of Infringing BECAUSE We Carefully Followed The Cablevision Precedent?

from the ridiculous-copyright-fights dept

The Aereo copyright fight continues. As you may recall, Aereo is a startup that is trying to let people stream free over-the-air broadcasting over the internet. To stay within the framework of copyright law, they've set up the most inefficient system possible, in which each subscriber gets his or her own antenna, connected to a streaming device. From a technical standpoint, this is insane. But, from the legal standpoint, it's required. Aereo won the first round, as the district court refused to grant an injunction. That fight quickly jumped to the appeals court, where Aereo has filed its main brief, which basically says "Cablevison, Cablevision, Cablevision, Cablevision, Cablevision, Cablevision, Cablevision..."

If you don't follow this stuff closely, a few years back, there was a ruling in the same appeals court, that found that Cablevision's remote DVR system was basically legal. As we noted at the time, it was the right decision, though for ridiculously convoluted reasons, which really showed just how ill-prepared copyright law is for modern technology and innovation. That ruling, however, is a key one that Aereo is relying on to argue that its remote streaming system is legal. So its 90+ page filing is basically page after page of Aereo trying to explain why it's just like Cablevision.

For the most part, I find its arguments compelling -- as they also clearly highlight how the broadcasters are basically looking to have a veto on innovations they don't like, and why that doesn't serve the public interest. They highlight that the broadcasters argument seems to be that copyright law is designed to protect them, rather than the public interest. Aereo points out that they're mistaken in this claim.
While Appellants imply that the sole purpose of the Copyright Act is to protect content owners, the Act was instead intended to strike the proper balance between copyright owners, on the one hand, and public access to information on the other.... Congress expressly and deliberately exempted “private” performances from copyright protection. Further, consumers have a right of access to local over-the-air broadcast television. There is no basis in law to confine that use to a home-based antenna or equipment, to fully time-shifted copies (whether on VCR, DVR, or RS-DVR), or to only non-Internet related deployment. Indeed, contrary to what may be the view of certain Appellants and amici, copyright laws were never intended to be used to confine consumers to outdated technology. The reality is that the networks fought VCRs, and they fought remote DVRs, and they lost in both cases. This is simply another attempt to preserve the status quo as a business matter without regard to fundamental copyright principles.
There is, also, a somewhat amusing response to the claims made by the broadcasters that Aereo should be found guilty for doing everything possible to avail itself of the specifics in the Cablevision case. They argue -- as we've seen some commenters on our posts argue -- that Aereo's specific technical decisions show that it was somehow intending to avoid the spirit of the law... by complying with the letter of it. Basically, they're complaining that Aereo may be jumping through a legal loophole they hadn't noticed. However, as Aereo points out, this argument really should work in Aereo's own favor, as the networks are basically admitting, flat out, that Aereo was doing everything it possibly could to live within the confines of the law:
Finally, both Appellants and amici argue that the Aereo technology is an “artifice” or some clever attempt to get around copyright law. Essentially, Appellants are arguing that Aereo carefully designed its system to comply with Cablevision. There is considerable irony in Appellants’ suggestion that Aereo is somehow culpable because it carefully designed its system to comply with copyright law.
Of course, it's interesting to note that one of the amici briefs on the other side came from Cablevision itself. This is a pretty cynical and obnoxious move from Cablevision. Having already won its legal fight that made the remote DVR legal, it knows that Aereo is actually potentially competitive. So rather than cheering another innovator on, following down the road it paved, Cablevision cynically jumps in to protect its turf and pretend that the ruling it fought so hard for doesn't apply to Aereo. I've included Cablevision's ridiculous brief below as well, in which it argues that it has a "direct interest in the proper interpretation" of the decision in its own case. That's hogwash. Cablevision's position here is solely to abuse copyright law and an important decision on its own behalf to now crush a competitor.

Oh, and in checking in on the docket on the case, I should mention that the silly amicus brief we talked about from former Register of Copyrights, Ralph Oman, in which he argued that new technologies should be illegal until Congress gives explicit approval, was amusingly rejected by the court for failing to comply with filing requirements. The court noted that it had given Oman "due notice" and he had not fixed the problems with his filing. However, after this rejection, he was able to refile yesterday...

Either way, this case really seems to be bringing out the crazy, crazy anti-innovation, anti-competition arguments from the pro-copyright crowd.

Filed Under: copyright, precedent
Companies: aereo, cablevision


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  1. icon
    average_joe (profile), 23 Oct 2012 @ 6:36pm

    Re: Re: Re: Re: Re:

    ivi was shot down because it did not qualify as a cable service under Section 111. The 'missing link' from Copyhype is that Aereo (and ivi) are a cable service. If they are a if all they are is a cable service, they should be able to function by giving the standard rebroadcast fee.

    I don't think that's quite it. The Second Circuit did indeed find that ivi was not a "cable system" entitled to the compulsory, statutory rate under Section 111. http://ipspotlight.files.wordpress.com/2012/08/wpix-v-ivi3.pdf

    But Aereo is not arguing that they are a "cable system" as ivi argued, and Section 111 is not in issue in the Aereo appeal. Aereo instead is arguing that the performances involved are not even public. The claim is that they're private performances, so the public performance right is not even implicated.

    The key to understanding the "missing link" argument put forth by Terry Hart on Copyhype is in knowing that each step along the way in which a work reaches its audience is considered to be a public performance. Or as the Second Circuit said in NFL v. Primetime, "each step in the process by which a protected work wends its way to its audience" is itself a public performance.

    The "missing link" argument put forth on Copyhype involves Aereo's transmission from its antennae to its recording devices. In Cablevision, the transmission from the head end to the remote DVRs was not mentioned by the appellate court (as far as I can recall), because Cablevision had a license to retransmit the works. But Aereo has no such license, so the public performance that occurs between its antennae and recording devices is not licensed. While Cablevision was covered since it had a public performance license, Aereo is not.

    That's the argument anyway, at least as I understand it. I'm not convinced that Cablevision had a license to send the performances from its head end to its remote DVRs, so I think there's maybe another layer of nuance there that's missing. But at the same time, I also think Cablevision is confusing and misguided. Perhaps it just doesn't fundamentally, and doctrinally, make sense. I'm not convinced the court applied doctrine so much as it made it up.

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