Is a broadcast to everyone private under the Copyright Act?

For the final post in my copyright series, I want to focus on another example in my series of discussions about formalism vs. policy in copyright. Today’s case is WNET v. Aereo, which allowed continued operation of a creative television streaming service. As I’ll discuss below, the case pretty clearly complies with the statutory scheme, much to the relief of those who believe content is overprotected and that new digital distribution methods should be allowed. This time, the policy opposition is best demonstrated by Judge Chin’s dissent in the case.

In the end, though, the case shows what all of the cases I’ve discussed show: copyright was not really developed with digital content storage and streaming in mind. While some rules fit nicely, others seem like creaky old constructs that can barely hold the weight of the future. The result is a set of highly formalistic rules that lead to services purposely designed inefficiently to either follow or avoid the letter of the law. This problem is not going to get any better with time, though my ownguess hope is that the pressure will cause providers to create some better solutions that leave everyone better off.

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On Policy and Plain Meaning in Copyright Law

As noted in my last post, there have been several important copyright decisions in the last couple months. I want to focus on two of them here: Viacom v. YouTube and UMG v. Escape Media. Both relate to the DMCA safe harbors of online providers who receive copyrighted material from their users – Section 512 of the Copyright Act. Their opposing outcomes illustrate the key point I want to make: separating interpretation from policy is hard, and I tend to favor following the statute rather than rewriting it when I don’t like the policy outcome. This is not an earthshattering observation – Solum and Chiang make a similar argument in their article on patent claim interpretation. Nevertheless, I think it bears some discussion with respect to the safe harbors.

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Solving the Digital Resale Problem

As Bruce Willis’s alleged complaints about not being able to leave his vast music collection to his children upon his death illustrate, modern digital media has created difficulties in secondary and resale markets. (I say alleged because the reports were denied. Side note: if news breaks on Daily Mail, be skeptical. And it’s sad that Cracked had to inform Americans of this…).

This post describes a recent attempt to create such a market, and proposes potential solutions. Continue reading

ReDigi on Secondary Liability

I was intrigued by the comment in the recent ReDigi holding to the effect that there were three distinct secondary liability claims in the case:  (a) contributory infringement; (b) inducement of infringement; and, (c) vicarious infringement (pp 14-15 of the opinion).  The judge finds that contributory infringement and vicarious infringement are established, so expressly does not rule on the inducement claim.  I can understand that inducement may be problematic if ReDigi was in fact advertising that it was a “legal” service, even if ReDigi was incorrect in the court’s opinion.  But I also thought that inducement was generally regarded as a part, or subset, of the contributory infringement claim, rather than as a distinct third test for secondary liability.

In Perfect 10 v Google, the court seems to divide contributory infringement into two sub-categories:  Sony-style arguments relating to articles not capable of substantial or commercially significant non-infringing uses, and Grokster/Napster-style arguments related to intentionally inducing or encouraging direct infringement.  This second class seems to break down into the “inducement” and the “active participation with knowledge” sub-categories.  Is ReDigi doing something different in describing “inducement” as a third distinct form of secondary liability outside contributory liability, or is it the same thing, but phrased differently?

Innovate or Innovation, Your Assurance of Meaningless Assertions

In the words of Portlandia, innovation is over. Or as another era of hipsters might say, innovation is dead anyway (Swingers). Take a look at the posturing of European Publishers Council and Google over the recent German bill to force search to pay for material longer than a snippet.

“As a result of today’s vote, ancillary copyright in its most damaging form has been stopped,” Google said in a statement. “However, the best outcome for Germany would be no new legislation because it threatens innovation, particularly for start-ups. It’s also not necessary because publishers and Internet companies can innovate together, just as Google has done in many other countries.”

Translation: Insert resistance is futile jokes as needed, but you will work with us and win! We all will win, because we innovate and belong to the Church of Innovation (located somewhere south of San Francisco and north of San Jose).

“With the right legal conditions and the technical tools provided by the Linked Content Coalition, it will be easy to access and use content legally,” the European Publishers Council said in a statement (PDF) on Friday. “This will mean that publishers will have the incentive to continue to populate the internet with high-quality, authoritative, diverse content and to support new, innovative business models for online content.”

Translation: We have no idea what is next. But please give us more time, protection, and money. We promise we will come up with something new.

Confession: Have I invoked innovation. Of course. It is seductive. It is too seductive. Pam Samuelson is a fan of Orwell’s Politics and the English Language, as is Neil Richards, and as am I. I must confess that I have sinned. I slipped away from Orwell’s mandate and went with the easy, meaningless word. I hate when that happens. I will try and stop.

Of course, what other word or words would say more is the next struggle. The German law says only a snippet is allowed. Right. What’s a snippet? Someone says innovate. I say, “Right. What’s innovate?” I hope to find out. If I am lucky, I may be like Bill Cosby’s Noah and come up with an answer no one else thought of. Hmm is that innovat… Khannn!!!!

Enjoy the clip