"The decision held that authors, according to common law, had the exclusive right to the first publication for perpetuity, but the right was annulled once the work was published." From this site: http://www.copyrighthistory.com/donaldson.html
In other words, artists can choose, at their own discretion, to publish or to not publish, but once they do publish, they have no right, or at least no common-law right, to prevent others from republishing.
So we truly have a worst-of-both-worlds situation: Aereo's business model is something that only cable companies are allowed to do (because it feels so much like cable), but Aereo is not allowed to be a cable company (because it's on the internet instead of cable).
Taken together, the Aereo and ivi rulings create an environment where competition is treated as theft. This is very bad news.
A hopeful prospect... and wouldn't that be weird, to see the ruling against Aereo transformed into a mechanism for rescuing net neutrality! I'd love to see that.
But I worry about the prospect of giving the FCC more power to decide who gets to transmit. How easy is it for the FCC to not grant a license to anyone they don't like? How much pressure could legacy industries put on the FCC to deny licenses? If the incumbents can control the licenses, then they're still in charge and this has all been for nothing.
I know what the law is, Whatever. And I know that it is wrong. Just as official state religion could not coexist with freedom of religion, copyright cannot coexist with free speech. Our collective failure to acknowledge that is becoming our collective undoing.
The "safety valves" are failing. "Fair use" has nearly been defined out of existence and negated by DRM, the "idea/expression dichotomy" is impossible to define (leaving it open to massive abuse), the public domain has been continuously shrunk (sometimes retroactively!) and the penalties for disobeying have grown. Meanwhile, the resources used to police copyright have massively expanded. The more we need safety valves, the less they work.
The only principled exceptions to free expression are against threats and against lies. Exceptions for the sake of profit are only good for protectionism.
My argument is that the Supreme Court made the wrong decision, both against Aereo and in Eldred & Golan. I call myself a "Free Culture fanatic" because I don't see any way to reconcile copyright with free expression. The law, as it is written and interpreted, is not to my liking, so I'm trying to change the law by publicly pointing out the injustice in it.
Get serious, Michael. Grocery stores relying on IP? Now, if you were talking about trademark, I could see where you were coming from, but this isn't a trademark-like situation. Since we're talking about downloading, this clearly has to do with copyright, and most grocery stores don't rely on copyright at all.
Until the day comes when I can get my bread and cheese off of Bittorrent, Winco can count on my continued patronage, and the retailers will do just fine.
It sounds like the FAA consulted Creative Commons on this one: "You may not exercise any of the rights granted to You in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation."
I agree; the GPL made GNU/Linux possible, and I believe it is why GNU/Linux has surpassed the various flavors of BSD in popularity.
The sad fact is that our modern predatory commercial and legal systems are perfect for enclosure. Powerful interests, looking to lock up as much as possible for themselves, have remade the world in their image. If you want something to be truly free and open to the public, you can't just say "This is public!", because someone will just waltz in, fence it off, and say "Now it's private, and it's mine!" Just look at what's happened to the very concept of public domain; it shouldn't take a 52-page process to figure out if something is public, and yet it does. The public domain has been replaced by the plundered domain.
Stallman, via the GPL, created a new kind of domain, which I'll call the protected domain. Whereas the public domain is free to be plundered, the protected domain is kept free, by force if necessary. This approach made Wikipedia possible, first through the GFDL and later through the superior CC-BY-SA license. These licenses are a bother, but they are a necessity, and until copyright and patent are dead, we will need the licenses to keep a protected domain of truly free knowledge.
To determine whether or not something is "public domain" (that is, in the control of the public), we should only have to ask two questions:
1. Is it private? - In other words, is this information that shouldn't be made public, and/or has the originator of this information taken steps to keep it private? Passwords, trade secrets, and (some) nude photos fall in this category.
2. Is it an identifier? - In other words, is this information that people use to specifically identify someone or something, such that your using it could create confusion or outright deception? Names, trademarks and trade dress fall in this category. See also: passing off.
You will notice that neither of these cover copyright and patent. That's because the concepts are inherently incoherent. Making something public - in other words, publishing it - and then asking everyone to treat is as private is a dumb idea, and humanity should have given up on the concept centuries ago.