Copyright Group, In Arguing Against FCC's Set Top Box Proposal, Appears To Argue That VCRs & DVRs Are Also Illegal

from the that's-not-how-it-works dept

Earlier this month, we wrote about how the Copyright Officer had filed a really bizarre and legally dubious comment with the FCC concerning the FCC's plan to open up competition in TV set top boxes, ending cable company's monopoly on those boxes (for which they bring in $21 billion in revenue per year). The FCC's plan was pretty straightforward -- and the cable companies have attacked it on all sides, with the one argument that seems to be sticking is that this plan is somehow an affront to copyright, and would result in piracy. This is blatantly, factually incorrect. The FCC's plan makes it clear that any system would retain existing technology protection measures against piracy (for better or for worse). If this new system resulted in infringement, it would because there's infringement on the internet already, not because of these new rules.

The Copyright Office's comment was ridiculous on multiple levels, but the worst was the basic argument that private agreements between cable providers and content providers could somehow limit or erase the fair use rights of the public. Yet that's exactly what the Copyright Office argued:
"The Office's principal reservation is that, as currently proposed, the rule could interfere with copyright owners' rights to license their works as provided by copyright law, and restrict their ability to impose reasonable conditions on the use of these works through the private negotiations that are the hallmark of the vibrant and dynamic MPVD marketplace."
This simply incorrect interpretation of the law raised some pretty serious questions, with Public Knowledge going so far as to note a somewhat disturbing pattern of the Copyright Office acting like a lobbying arm for Hollywood, rather than an impartial organization bound by what's in the actual law.

Following up on all of this, one of the many legacy entertainment industry lobbying groups, the Copyright Alliance has released its own letter to the FCC basically repeating what the Copyright Office claimed. It also put out a blog post about the letter... but really the blog post seemed to be an attempt to attack Public Knowledge for its comments about the Copyright Office.

The Copyright Alliance's letter is basically exactly what you'd expect, rehashing the already debunked claims about how the FCC's plans will cause copyright problems, but the Copyright Alliance seems to take it one step further, arguing, ridiculously, that anything that copyright holders don't like is obviously against the law. Read the following quite carefully:
As noted by the Copyright Office, copyright law is predicated on the theory that creators are incentivized to create new works by the prospect of reaping the economic fruits of their creative labor, which in turn benefits the public by increasing the number of creative works available for their enjoyment. This economic rationale behind copyright protection has been repeatedly confirmed by the Supreme Court. The Copyright Act creates these incentives by granting copyright owners a bundle of exclusive rights in their works, which they can assign and/or license to third parties in their discretion. The detailed contractual arrangements governing the release of copyrighted works into the commercial marketplace are what enable copyright owners to realize the full value of their works. The FCC’s Proposal undermines this licensing structure by forcing MVPDs to deliver copyrighted content—including all content the MVPDs license from programmers and other content creators—to unlicensed third parties, without the authorization of those copyright holders, while offering no mechanism to ensure that the detailed license arrangements between MVPDs and programmers/copyright owners are respected. Therefore, the Register is correct in her observation that the Proposal threatens to harm copyright owners by encroaching on their exclusive prerogatives to both exercise and license their rights to reproduce, distribute, display, and perform their creative works, as well as by undermining their ability to earn a return on their investment in those works.
Except, if what I've bolded above is actually copyright law, then the VCR, the DVR, the MP3 player, photocopiers and much of the very internet itself are inherently against copyright law. But that's not what courts have found. If you look at the classic Betamax lawsuit, it made it abundantly clear that even when there were license agreements between content providers and TV stations that end users could absolutely record and watch content via an "unlicensed" device, known as the VCR. This just takes the Copyright Office's ridiculous assertion that copyright holders and ISPs can somehow write fair use out of their agreements for end users, and takes it even further to effectively write the Betamax ruling out of existence and set up a framework that says there can be no fair use in new consumer electronics.

That's both wrong and crazy. And, yes, I know that the former Copyright Office boss Ralph Oman has argued that all technology should be considered infringing until Congress says it's okay, but that's not the actual law, and it's incredibly dishonest to suggest it's the case.

Here's the important thing that the Copyright Office and the Copyright Alliance don't seem to understand (or are willfully ignoring). This content is already licensed. The only people who will get access to it are those who have a legitimate right to access the content from their cable providers. In other words, everything is licensed. There is no "harm" at all. The only issue is that the content can be accessed (by the paying subscribers!) via alternative hardware (which might add some more features, but which will still have the same copy protection). But nothing in this creates any problems for the content creators, because the overall setup is the same. They have licensed the work. The hardware alternatives that may arise may include some additional features, such as recording and such, but that's well within their legal rights under fair use. The complaint here seems to just be that the Copyright Alliance and the Copyright Office don't like fair use and don't want the Betamax standard to exist any more.

The Copyright Alliance and its funders in the entertainment industry may wish that the VCR were never made legal (even though it was a device that basically saved Hollywood by bringing in massive new markets and revenue streams), but they don't get to rewrite history and pretend it doesn't exist.

It's this kind of crap that is so annoying about these groups like the Copyright Alliance. They are flat out misrepresenting reality.

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  • identicon
    Anonymous Coward, 24 Aug 2016 @ 9:42am

    It's this kind of crap that is so annoying about these groups like the Copyright Alliance. They are flat out misrepresenting reality

    Politics 101, act as though the world is as you want it to be, and if enough people believes you and act as you tell them, the actual law becomes mute.

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    • icon
      afn29129 (profile), 24 Aug 2016 @ 10:20am

      Re:

      This! >>>>> "act as though the world is as you want it to be, and if enough people believes you and act as you tell them..."

      This reminds me of how many fools believed that the millennium began on Jan-01-2000. And the Flat Earth Society probably has millions of members as well.

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    • icon
      Derek Kerton (profile), 24 Aug 2016 @ 10:44am

      Re:

      er...I'm not sure if you actually meant "mute", as in relatively silent against the din of the lies

      or if you meant "moot", as in, up for debate, or mostly irrelevant.

      I guess I just like to tute my own horn.

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    identicon
    Anonymous Coward, 24 Aug 2016 @ 9:47am

    Here's the important thing that the Copyright Office and the Copyright Alliance don't seem to understand (or are willfully ignoring). This content is already licensed. The only people who will get access to it are those who have a legitimate right to access the content from their cable providers. In other words, everything is licensed.

    You're simply wrong, Mike. The license from the copyright owner to the MVPD allows the latter to publicly perform the content. The proposed rules would force the MVPD to transmit the content to a third party who has no such license. That third party would then publicly perform the content by transmitting it to the end-user, and since there's no license, it's copyright infringement. And end-user has no license, and the fact that an end-user paid for the privilege of receiving the content from the licensed MVPD does not mean it has any right to receive the content from an unlicensed third party. Just saying "this content is already licensed" is wrong. The transmission from the third party to the end user is NOT licensed. That's the problem. Can you address it?

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    • icon
      Wyrm (profile), 24 Aug 2016 @ 10:01am

      That reasoning could apply to VCR too. The fact that the set top box is connected doesn't change the applicable law: is a hardware that enable the customer some fair uses that are not intended by the copyright holder, but are still legal.
      If a third party set top box manufacturer uses the box to collect copyrighted content illegally, then you can sure the individual manufacturer. Otherwise using a third party hardware doesn't constitute infringement.

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      • identicon
        Anonymous Coward, 24 Aug 2016 @ 11:41am

        Re:

        That reasoning could apply to VCR too.

        The difference is that, with a set-top box, the end-user has already received the content via the public performance. With the FCC's plan, the content goes through the third party before it's transmitted to the end-user. That third party public performs when it transmits to the end-user.

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        • identicon
          Anonymous Coward, 24 Aug 2016 @ 12:27pm

          Re: Re:

          No it is the user deciding which equipment to view his purchased content with same as a VCR

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          • identicon
            Anonymous Coward, 24 Aug 2016 @ 2:35pm

            Re: Re: Re:

            No it is the user deciding which equipment to view his purchased content with same as a VCR

            But it's not the same under Aereo. End-users don't have licenses to receive content, they just have a contractual right to receive it. But that's not the issue. The issue is how that content is transmitted to the user. With the VCR, the content was transmitted over the airwaves. Those transmissions were licensed. With the NPRM, third parties will transmit to end-users. Those transmissions will not be licensed. This is one of the reasons copyright owners don't like the proposal.

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            • icon
              That One Guy (profile), 24 Aug 2016 @ 4:30pm

              Re: Re: Re: Re:

              With the VCR, the content was transmitted over the airwaves. Those transmissions were licensed. With the NPRM, third parties will transmit to end-users. Those transmissions will not be licensed. This is one of the reasons copyright owners don't like the proposal.

              You're going to have to explain that one, because I'm not seeing it. With the VCR the content is transmitted to the tv/cable box, and the VCR is able to record a copy of that transmission.

              Third-party alternatives to the cable box simply replace the previous cable box, there's no 'new' transmission in the process, unless you think that from the cable box to the tv is a transmission(in which case does that mean there is actually two transmissions to licence, from the source to the cable box, and from the box to the tv?), in which case the same license would work for both 'standard' and 'new'.

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              • identicon
                Anonymous Coward, 24 Aug 2016 @ 6:02pm

                Re: Re: Re: Re: Re:

                You're going to have to explain that one, because I'm not seeing it. With the VCR the content is transmitted to the tv/cable box, and the VCR is able to record a copy of that transmission.

                Third-party alternatives to the cable box simply replace the previous cable box, there's no 'new' transmission in the process, unless you think that from the cable box to the tv is a transmission(in which case does that mean there is actually two transmissions to licence, from the source to the cable box, and from the box to the tv?), in which case the same license would work for both 'standard' and 'new'.


                There is a transmission from a VCR to a TV, but that's not "to the public," so it doesn't implicate the public performance right. It's a private performance, and we can ignore it.

                The key with set-top boxes, VCRs, DVRs, etc. is that they are located in someone's house, and they only touch the content after the transmission has already supplied the consumer with the content. So when I stream a movie from Netflix to my Tivo, that transmission is a public performance. Now say a third party stands between Netflix and my Tivo. This third party intercepts the transmission from Netflix and then retransmits it to my Tivo. In this scenario, the transmission from the third party to my Tivo is a public performance. And unless that third party has a license, it's infringement. This is what Aereo did with it's antennas.

                Applying that here, if the MVPD transmits to the third party, and then that third party transmits to the subscriber, that third party is publicly performing. It doesn't matter whether the subscriber pays for the content. What matters is that the third party doesn't have a license to transmit the content to the subscriber. Hope this helps!

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                • icon
                  That One Guy (profile), 24 Aug 2016 @ 7:19pm

                  Re: Re: Re: Re: Re: Re:

                  Appreciate the attempt but I'm still not getting it because as I understand it the proposal by the FCC isn't about adding a new device, from old cable box to new cable box and then to tv, it's about replacing one, that being the cable-box, the only difference is that the 'new' cable box is sold by someone else and owned by the customer rather than (more often than not) rented out to them by someone else.

                  The ones providing the source material can just as easily strike the same deals with the 'new' hardware providers as they do with the current hardware providers, the only real difference is that now the customer has multiple choices as to who they're getting the hardware from. If the previous route from source, to box, to tv wasn't considered a public performance then I'm just not seeing how that suddenly changes if who sells the box changes.

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                  • identicon
                    Anonymous Coward, 24 Aug 2016 @ 7:57pm

                    Re: Re: Re: Re: Re: Re: Re:

                    The FCC wants to allow more than just a new box. It wants to allow software solutions as well, like computers and apps. And it wants to force pay TV providers like cable companies to send their signals to third parties like Google who would then retransmit them to the subscribers. Google can't retransmit that content now because it's copyright infringement. It would need to get a license. The FCC would change this so that Google can retransmit without a license. Since it would allow Google to do something that is otherwise infringement, it takes away the rights of copyright owners. It also forces pay TV providers to exceed the scope of their licenses, again taking away rights from copyright owners.

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    • identicon
      Anonymous Coward, 24 Aug 2016 @ 10:35am

      Re:

      You make it sound as though an MVPD has to surrender its content to an unlicensed MVPD. Not so. If you have read the draft regulation, the content does not flow from an MVPD to "an unlicensed third party." The MVPD has to make the information flows available to a third party "Navigation Device." In other words, you the consumer can buy a Navigation Device made by Amazon, Apple, Google, Silicon Dust, TiVo, etc., that has a better user interface and search capability than what the MVPD provides, and that even integrates into search results places you can find the same content from other licensed services. The seller of that Navigation Device will be providing you related services -- like an enhanced program guide, user interface, and search capability. And, buying the third party Navigation Device can save consumers money over the monthly rental cost.

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      • identicon
        Anonymous Coward, 24 Aug 2016 @ 12:06pm

        Re: Re:

        You make it sound as though an MVPD has to surrender its content to an unlicensed MVPD. Not so. If you have read the draft regulation, the content does not flow from an MVPD to "an unlicensed third party." The MVPD has to make the information flows available to a third party "Navigation Device."

        Paragraph 26 of the NPRM says that the MVPD must send its "multichannel video programming (including both linear and on-demand programming)" to the third party so that it can make it available to the end-user "through an application or search interface offered by an unaffiliated vendor." That's the content going from the MVPD to the third part to the end-user.

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    • identicon
      Chris Brand, 24 Aug 2016 @ 10:44am

      Re:

      "The proposed rules would force the MVPD to transmit the content to a third party who has no such license"
      What third party ? From what I understand of the proposal, the content would go to a piece of hardware owned by the subscriber, who has indeed paid to receive that content (that being assured by the use of DRM).

      Surely you don't think that the manufacturer of that piece of hardware receives the content ?

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    • icon
      Derek Kerton (profile), 24 Aug 2016 @ 10:46am

      Re:

      Your argument = "We made wacky, complicated, non-enforceable, messed up contracts with some partners, and all our paying end customers need to abide by them."

      Don't you get the part about how your argument would also make the VCR illegal...even though it isn't?

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      • identicon
        Anonymous Coward, 24 Aug 2016 @ 12:10pm

        Re: Re:

        Don't you get the part about how your argument would also make the VCR illegal...even though it isn't?

        Nonsense. VCRs record content that end-users have already received via licensed transmissions.

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    • icon
      WDS (profile), 24 Aug 2016 @ 10:56am

      Re:

      If I buy a cable box from XYZ, my cable company does not transmit the signal to XYZ who then transmits it to me, they still transmit the signal to me. It is just as licensed as it ever was. There is no transmission by a third party. There is just a third party making a box that the cable company doesn't get to overcharge rent on.

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    • icon
      Mike Masnick (profile), 24 Aug 2016 @ 12:52pm

      Re:

      You're simply wrong, Mike. The license from the copyright owner to the MVPD allows the latter to publicly perform the content. The proposed rules would force the MVPD to transmit the content to a third party who has no such license.

      No. It doesn't. It says that third party *DEVICES* need to be able to display the content to MPVD subscribers. That's all licensed content. It's just coming through a new box.

      That third party would then publicly perform the content by transmitting it to the end-user, and since there's no license, it's copyright infringement. And end-user has no license, and the fact that an end-user paid for the privilege of receiving the content from the licensed MVPD does not mean it has any right to receive the content from an unlicensed third party.

      It's not coming from an unlicensed third party. It's coming from the licensed MVPD *through* a third party device.

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      • identicon
        Anonymous Coward, 24 Aug 2016 @ 2:04pm

        Re: Re:

        No. It doesn't. It says that third party *DEVICES* need to be able to display the content to MPVD subscribers. That's all licensed content. It's just coming through a new box.

        It's licensed to go from the MVPD directly to the end-user, not from the MVPD to a third party to the end-user. The third party is not licensed to transmit content to the end-user. That's an infringing public performance under Aereo.

        It's not coming from an unlicensed third party. It's coming from the licensed MVPD *through* a third party device.

        But "navigation device" is defined broadly to include "applications." From Paragraph 22:
        The Act does not define the terms “navigation device” or “interactive communications equipment, and other equipment,” but we believe that Congress intended the terms to be far broader than conventional cable boxes or other hardware alone; Section 629 is plainly written to cover any equipment used by consumers to access multichannel video programming and other services, and software features have long been essential elements of such equipment. Exercising our authority to interpret ambiguous terms in the Communications Act, we tentatively conclude that these terms include both the hardware and software (such as applications) employed in such devices that allow consumers to access multichannel video programming and other services offered over multichannel video programming systems.
        The NPRM is clear that MVPDs must supply the "information flows" to the third parties, which includes "the video programming itself." Paragraph 2.

        So the MVPD sends the content to the third party, and the third party makes it available to the end-user via software. How is this not so?

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        • icon
          Mike Masnick (profile), 24 Aug 2016 @ 4:48pm

          Re: Re: Re:

          It's licensed to go from the MVPD directly to the end-user, not from the MVPD to a third party to the end-user. The third party is not licensed to transmit content to the end-user. That's an infringing public performance under Aereo.

          It's not infringing under Aereo in the slightest. The third party boxes are not setting up alternatives to the cable companies. They're providing a box that will allow SUBSCRIBERS to the cable companies to get that content. There is no infringement here.

          But "navigation device" is defined broadly to include "applications." From Paragraph 22:


          I believe you're misreading what's being said. What the NPRM is noting with both the mention of applications and the "information flows" (perhaps inartfully, but not really) is that the content must be able to flow from the MVPD, through the 3rd party device, to the end user who has an account with the MVPD. That's it. It's not saying they have to hand over all the content unencumbered. They just have to make the content available such that a *properly authorized individual* can access that content via a third party device that is not the cable box.

          You guys are turning up ghosts and goblins where they don't actually exist. There's no infringement here. There's just increased competition to make better systems that will actually help create more value.

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          • identicon
            Anonymous Coward, 24 Aug 2016 @ 5:49pm

            Re: Re: Re: Re:

            It's not infringing under Aereo in the slightest. The third party boxes are not setting up alternatives to the cable companies. They're providing a box that will allow SUBSCRIBERS to the cable companies to get that content. There is no infringement here.

            And Aereo allowed end-users to receive content they could already receive for free by setting up their own antennas, yet Aereo, acting as a middleman, was publicly performing without a license. Just because I subscribe to HBO Now, it doesn't mean I can stream a movie available on HBO from a pirate streaming site. The pathway in which the content gets to the subscriber matters very much. But I think we need to figure out the next point, since this hinges on that...

            I believe you're misreading what's being said. What the NPRM is noting with both the mention of applications and the "information flows" (perhaps inartfully, but not really) is that the content must be able to flow from the MVPD, through the 3rd party device, to the end user who has an account with the MVPD. That's it. It's not saying they have to hand over all the content unencumbered. They just have to make the content available such that a *properly authorized individual* can access that content via a third party device that is not the cable box.

            It's that "flow from the MVPD, through the 3rd party device" that's the problem. That "device" includes "applications." How do you think, for example, that the information flow from the MVPD will get to an application on someone's smartphone? It will go from the MVPD to the third party, and then that third party will transmit it to the smartphone. There's no set-top box in this scenario, and the content does not come directly from the MVPD. The third party, just like Aereo, acts as a middleman and publicly performs the content. The MVPDs are required to turn over their information flows, i.e., the content itself, to allow for exactly this type of scenario.

            You guys are turning up ghosts and goblins where they don't actually exist. There's no infringement here. There's just increased competition to make better systems that will actually help create more value.

            Then can you explain how, in my hypothetical, the content is transmitted to the smartphone? Thanks!

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            • icon
              Mike Masnick (profile), 25 Aug 2016 @ 7:07am

              Re: Re: Re: Re: Re:

              It's that "flow from the MVPD, through the 3rd party device" that's the problem. That "device" includes "applications." How do you think, for example, that the information flow from the MVPD will get to an application on someone's smartphone? It will go from the MVPD to the third party, and then that third party will transmit it to the smartphone. There's no set-top box in this scenario, and the content does not come directly from the MVPD. The third party, just like Aereo, acts as a middleman and publicly performs the content. The MVPDs are required to turn over their information flows, i.e., the content itself, to allow for exactly this type of scenario.


              Again, this is incorrect. The content flows from the MVPD to the DEVICE or APPLICATION, but not to the 3rd party itself.

              Then can you explain how, in my hypothetical, the content is transmitted to the smartphone? Thanks!


              Yes. The MVPD has an API. The 3rd party device or app maker makes use of that API to access the content within their own framework. The end user who has an account with the MVPD and the device/app in question logs in and can then pull the "information" directly from the MVPD into the 3rd party device they bought or the app on their phone. That's what the NPRM is saying.

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              • identicon
                Anonymous Coward, 26 Aug 2016 @ 7:02am

                Re: Re: Re: Re: Re: Re:

                Again, this is incorrect. The content flows from the MVPD to the DEVICE or APPLICATION, but not to the 3rd party itself. *** Yes. The MVPD has an API. The 3rd party device or app maker makes use of that API to access the content within their own framework. The end user who has an account with the MVPD and the device/app in question logs in and can then pull the "information" directly from the MVPD into the 3rd party device they bought or the app on their phone. That's what the NPRM is saying.

                I just don't see those limitations in the NPRM. For example, Paragraph 11: "The ground rules we propose in this Notice of Proposed Rulemaking are designed to let MVPD subscribers watch what they pay for wherever they want, however they want, and whenever they want[.]"

                Say I subscribe to DISH and receive HBO via satellite. Under the rules, I can watch HBO on an application provided by Google "wherever" I want. I want to watch it when I'm not at home on my iPhone. How does the signal get to my iPhone? It doesn't come directly from DISH. My iPhone can't receive satellite television transmissions directly.

                It comes over my cellular network, say AT&T. How did AT&T get the content? It goes from DISH to Google to AT&T. I'm not getting it directly from DISH. There is a middleman, and that middleman publicly performs under Aereo. This is why DISH is required to make the information flows, which include the content itself, to Google.

                Can you explain how my iPhone pulls the content directly from DISH's satellite without a middleman? I don't see how that's possible. And sorry for the late reply--been super busy!

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                • identicon
                  Anonymous Coward, 26 Aug 2016 @ 1:20pm

                  Re: Re: Re: Re: Re: Re: Re: (i.e. @ the very confused AC)

                  You seem to be making some very circuit-switched assumptions about the way this works, which simply *are not true* in today's packet-switched Internet Protocol world.

                  Concrete example:
                  You subscribe to BigCableCo, and want to get your latest HBO fix (whatever it may be, considering GoT is wrapping up) on your phone, so you have Google TV or whatever they call their app on your phone. The Google TV app simply takes your BigCableCo credentials (however this is to work) and connects to https://headend.bigcableco.net, passing the credentials and the ID of said HBO show, and headend.bigcableco.net either sends the video data directly back to your phone as a response, or says "nope" for some reason (such as you not having that HBO channel).

                  Tell me where Google got into the middle of that video transmission/public performance!

                  (As an aside -- this, network-wise, is the same as clicking Play on an embedded Youtube video in a Techdirt article -- your browser goes out and asks youtube.com for the video stream, and Youtube sends you the video stream back. Techdirt's servers never touch it!)

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                • icon
                  Mike Masnick (profile), 26 Aug 2016 @ 8:45pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Say I subscribe to DISH and receive HBO via satellite. Under the rules, I can watch HBO on an application provided by Google "wherever" I want. I want to watch it when I'm not at home on my iPhone. How does the signal get to my iPhone? It doesn't come directly from DISH. My iPhone can't receive satellite television transmissions directly.

                  It comes over my cellular network, say AT&T. How did AT&T get the content? It goes from DISH to Google to AT&T. I'm not getting it directly from DISH. There is a middleman, and that middleman publicly performs under Aereo. This is why DISH is required to make the information flows, which include the content itself, to Google.


                  You are assuming, incorrectly, that the signal must come from a satellite. That's incorrect. The content will come via the internet. The 3rd party will pass on credentials from the end user to the MVPD.

                  So, no, the 3rd party never gets it. It goes straight from DISH to the end user. AT&T and Google are just making the connection.

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    • identicon
      Anonymous Coward, 25 Aug 2016 @ 7:13am

      Re:

      Do you mind giving a more concrete example of how this infringement would take place? (i.e. the kind of content, the MVPD, and the "third party").

      I am having trouble understanding why the end user would need a license.

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    • identicon
      Julian Lives, 26 Aug 2016 @ 7:07am

      Re:

      How is transmission to one person considered a violation of the public performance right? Because, yeah, once it goes through the tubes it's a public performance, but not when it goes through "the tubes" to a person's house. This is an attempt to expand the definition of public performance to legislate what people can do in their own homes.

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      • identicon
        Anonymous Coward, 26 Aug 2016 @ 8:46am

        Re: Re:

        How is transmission to one person considered a violation of the public performance right? Because, yeah, once it goes through the tubes it's a public performance, but not when it goes through "the tubes" to a person's house.

        If that were true, on-demand videos wouldn't be public performances. Amazon, for example, could rent movies to subscribers without licensing the content. The reason why it's a public performance comes from the Transmit Clause, 17 USC 101, and the Supreme Court's interpretation in Aereo. It doesn't matter that only one person can receive a discrete transmission. What matters is the relationship of the person to the sender of the transmission and to the content itself. If I store my legally-purchased copy in the cloud and stream it back to myself, it's a private performance because it's content I've already legally acquired. If Amazon streams me a video that I just rented, then it's a public performance because it's not content I've already legally acquired.

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  • icon
    DB (profile), 24 Aug 2016 @ 9:49am

    What about the other side of the bargain -- 'limited time'?

    The discussion above leaves out the rest of the constitutional justification -- "for a limited time".

    The cable companies want more than the exclusive right to sell the works. They want full control over the access and use of the works. For all time.

    They want a world where there is no equivalent of a public library. No equivalent of reselling a book. No equivalent of saving a book for your children to read when they are older. And notably, minimal possibility that the work will ever be available in the public domain.

    reply to this | link to this | view in chronology ]

    • identicon
      Zonker, 24 Aug 2016 @ 1:29pm

      Re: What about the other side of the bargain -- 'limited time'?

      There is also the fair use requirement that the Supreme Court ruled is the sole reason that copyright law does not violate the 1st Amendment of the Constitution and is thus constitutionally enforceable law.

      Remove fair use (as the copyright groups keep pushing for) and copyright law becomes unconstitutional (free speech violation).

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 24 Aug 2016 @ 1:59pm

        Re: Re: What about the other side of the bargain -- 'limited time'?

        Remove fair use (as the copyright groups keep pushing for) and copyright law becomes unconstitutional (free speech violation).

        You'd think so anyway, but given they've already successfully(and insanely in my opinion) argued that endless retroactive extensions to the duration of copyright are perfectly in line with the 'limited time' language of the law so long as each individual retroactive extension isn't eternal, I wouldn't hold my breath.

        Given copyright law has already been warped beyond all recognition from it's original stated purpose, I could absolutely see them gutting fair use from the law and still insisting that it's perfectly legal and constitutional, and still serves it's purpose of serving the public because look, people can always pay to access to the content in the manner that it's presented(and in no other way)!

        reply to this | link to this | view in chronology ]

  • icon
    Nate (profile), 24 Aug 2016 @ 9:51am

    ???

    "the Copyright Officer had filed a really bizarre and legally dubious comment with the FCC"

    Suddenly the arbitrary Youtube ContentID enforcement makes a lot more sense.

    "You have the right to remain silent, and should you choose not to exercise that right we will exercise it for you.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Aug 2016 @ 10:02am

    Not illegal, but evil

    Well, technically they are not illegal, but in the eyes of the content industry they are definitely evil!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Aug 2016 @ 10:14am

    OH NO!

    I say to you that the OPEN SET TOP BOX is to the American film producer and the American public as the Boston strangler is to the woman home alone.

    /S!

    reply to this | link to this | view in chronology ]

  • identicon
    SpaceLifeForm, 24 Aug 2016 @ 10:19am

    The Media Vendor Police Department License

    They just want another license.
    A license to steal.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Aug 2016 @ 11:15am

      Re: The Media Vendor Police Department License

      No They have had a licence to steal for a long time, they want to keep it.

      reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 24 Aug 2016 @ 10:26am

    Not being illegal doesn't mean that the content industry isn't going to claim that they are illegal.

    The 'Betamax case' was decided by the supreme court over a three decades ago. It was well known by everyone in the industry. Yet the industry continues to assert that time and format shifting is illegal.

    reply to this | link to this | view in chronology ]

  • icon
    Derek Kerton (profile), 24 Aug 2016 @ 10:40am

    Incorrect

    "copyright law is predicated on the theory that creators are incentivized to create new works by the prospect of reaping the economic fruits of their creative labor, which in turn benefits the public by increasing the number of creative works available for their enjoyment"

    The objective is not so that the works are "available for our enjoyment", but rather that such works will eventually be fully ours, aka, Public Domain.

    They act like the mid-state is the end game. It is not.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Aug 2016 @ 2:58pm

      Re: Incorrect

      No. That's not the objective.

      Why would the objective be that my creation is only my property for a period of time until I then have to let others monetize it? That's ridiculous and stupid.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 24 Aug 2016 @ 4:10pm

        Re: Re: Incorrect

        Yes, it really is, otherwise that pesky 'public domain' thing wouldn't exist, that vexing 'fair use' concept wouldn't be in the law, and copyright wouldn't have a (currently theoretical) expiration date at all. Copyright grants you a temporary monopoly on your creation in exchange for the public getting ownership once the temporary term is over, in order to allow culture and creativity by you and others to build and flourish.

        'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.'

        Pay particular attention to the bolded parts, the 'to' and 'by', as those make clear what's the goal, versus what's the method to attain that goal.

        However, if you don't care for the deal then great, no copyright monopoly for you then.

        Copyright doesn't give you squat that you don't already have(the ability to make copies, the ability to sell, the ability to modify), it takes the ability to do those things away from everyone else, so if you don't like the terms of the deal('limited monopoly for now, in exchange for others to build upon your stuff later') then I guess the deal is off. You're welcome to keep anything you create to yourself, but once it's available for others to see and copy, without the law to prevent that copying have fun keeping it to yourself.

        reply to this | link to this | view in chronology ]

      • identicon
        Thad, 24 Aug 2016 @ 5:18pm

        Re: Re: Incorrect

        Why would the objective be that my creation is only my property for a period of time until I then have to let others monetize it?

        Because eventually you're going to die.

        ...oh, right, by "my creation" you mean "a thing that was legally created by a corporation and not any actual or identifiable human beings." Carry on, then.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Aug 2016 @ 5:53pm

        Re: Re: Incorrect

        You mean like the seventy (and constantly increasing) years after you're dead as a doornail?

        reply to this | link to this | view in chronology ]

      • icon
        JMT (profile), 24 Aug 2016 @ 11:03pm

        Re: Re: Incorrect

        "Why would the objective be that my creation is only my property for a period of time until I then have to let others monetize it?"

        Because as soon as you publish it, or even let anyone see/hear/read it, it's NOT yours anymore. That's just the natural state of world as it has always been. Copyright was introduced very recently in human history as a set of temporary (hah!) restrictions on the public's ability to use works created by others, after which things are supposed to revert to that natural state (i.e. the public domain).

        If having sole possession of your creation is so important to you, keep it to yourself. But don't you dare use any one else's work as inspiration for your own!

        reply to this | link to this | view in chronology ]

      • icon
        Derek Kerton (profile), 25 Aug 2016 @ 1:53am

        Re: Re: Incorrect

        "The objective is not so that the works are "available for our enjoyment""

        Yes, it IS the objective. It is, in fact, the specific and ONLY objective of copyright. Offering creators temporary exclusive rights is just a means to the end.

        Copyright was not created so that your content could be your private property. Nor so that you could monetize it. You need to read history, the Constitution, the Federalist Papers, the Supreme Court's decisions...or just Techdirt.

        Copyright's function is to distort the market with an artificial monopoly, for a period of time, in order to provide enough incentive for creators to share their content. But the objective is that last part, getting creators to share their content so that the public can benefit.

        The laws were absolutely written to benefit the public, not the creator.

        reply to this | link to this | view in chronology ]

        • icon
          Derek Kerton (profile), 25 Aug 2016 @ 1:59am

          Re: Re: Re: Incorrect

          ugh. I pasted the wrong quote at the top above. Should have been

          "I then have to let others monetize it [or do whatever they please with it]"

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 25 Aug 2016 @ 6:18am

          Re: Re: Re: Incorrect

          The laws were absolutely written to benefit the public, not the creator.

          That is the political spin used to get the laws passed, the intent was always to benefit the middlemen publishers. Proof the dominant voices for any extensions of copyright law, whether terms or what is covered, are the publishers, who claim to speak on behalf of the creators. Also note, that corporations do not create, they just employ people who create.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Aug 2016 @ 10:59am

    Not How It Works

    "Ralph Oman has argued that all technology should be considered infringing until Congress says it's okay..."

    Ralph Oman should be considered a criminal asshat until the legal system acquits him.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Aug 2016 @ 2:22pm

    Consumers want cable box,s that can record tv programs,with an easy to use interface ,
    cable companys need to recognise that tech has advanced
    alot in the last 5 years with streaming and video on demand services being expected by consumers .
    Most tvs have netflix and youtube apps being built in .
    Companys that dont provide the latest tech or apps to consumers will just encourage more customers to cut the cord or even pirate programs .
    The cable companys could end up like the record companys who had no easy to use legal option to napster and music piracy
    Until apple had to show them how to provide a legal digital
    music download store .

    AN open cable tv platform would be likely to provide a wider range devices which would attract more customers to
    pay for cable tv .

    reply to this | link to this | view in chronology ]

  • identicon
    John Mayor, 25 Aug 2016 @ 9:37am

    COPYRIGHT WHAT?

    The best thing every given humanity/ mankind, was the death and resurrection of Jesus Christ!... that gave, and gives those who believe, ETERNAL LIFE (AND!... IN A VERY SWEET AND LOVING KINGDOM!)!... and for which, no patent or copyright was demanded!
    .
    Many would have us believe that their junk, and/ or services, have value!... and that we all would live happier lives if said junk, and/ or services, were in our possession!... AND!... for a "FEE"!
    .
    We don't have to cost/ price anything good in this world to be happy, healthy and wise!... we've simply chosen the way of FILTHY LUCRE/ MONETIZATION in order to share/ exchange our individual and collective "GROSS PERSONAL PRODUCT"! And until we realize that there is a better way of sharing/ exchanging our GPP, then we'll continue to play these stupid games of WHO OWNS WHAT!... and, WHO HAS A RIGHT TO WHAT!
    .
    To sum up, no self-respecting alien civilization would be playing the games that humanity/ mankind has been-- and is-- playing! And this human "playfulness" probably explains why these more advanced creatures don't "do lunch" with earthlings!... or at least, very often!
    .
    If it wasn't for the global NGO+NPO community (what Jeremy Rifkin, President of the TIR Consulting Group calls the "Third Sector"!), humanity would be up "sh*t creak" without a paddle! And a community, that has long prided itself on transforming the notion of the "Market Sector"!
    .
    Please!... no emails!
    .
    P.S.: The notion of the GROSS NATIONAL PRODUCT fails to even recognize the inherent value of the products and services of the "Third Sector"! And for that reason, it is a GROSS MISCARRIAGE OF ECONOMIC AND SOCIAL JUSTICE!... and deserving of our scorn, and ridicule!

    reply to this | link to this | view in chronology ]


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