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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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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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?