Skip to content

Copyright Law

Why Isn’t Aereo a Cable System?

Aereo antennaThe Aereo case was argued this morning, and before Paul Clement could even get rolling on his introduction on behalf of the broadcaster plaintiffs, Justice Sotomayor hit him with this:

JUSTICE SOTOMAYOR: Why aren’t [companies like Aereo] cable companies?

MR. CLEMENT: They’re not ­–

JUSTICE SOTOMAYOR: I’m looking at the — everybody’s been arguing this case as if for sure they’re not. But I look at the definition of a cable company, and it seems to fit.

I’ve been wondering this too. The question presented in Aereo is whether Aereo is engaged in a “public performance” when its servers automatically save and transmit recorded broadcast television programs to subscribers at their request, or whether that activity is properly understood as only the users’ activity.

In debating that issue, both the broadcasters and Aereo have at separate points analogized Aereo to a cable system — the broadcasters in the course of claiming that Congress intended to define what Aereo is doing as a “public performance,” just as it did with cable retransmission; Aereo in claiming that it is engaged in disruptive innovation, just as the early cable operators did. But that raises a somewhat different question: why isn’t Aereo subject to Section 111 of the Copyright Act? If it is, then the Court could avoid the entire debate over public performances; the text of Section 111 provides a direct route to liability for certain retransmissions without even mentioning the words “public performance.” And yet, as far as I can tell, it has not been raised by the broadcaster plaintiffs as a basis for a preliminary injunction. Read More »Why Isn’t Aereo a Cable System?

My Official Super Bowl Television Post

kitten bowl[Madisonian readers: I wrote this for a general audience. I’m reposting here for your amusement/fact-checking.]

The 48th annual Super Bowl is tomorrow, which means of course that people are thinking about intellectual property law. (Doesn’t everyone?) No, I’m not going to talk about whether your local grocery store infringes on the NFL’s trademark when they advertise “Super Bowl Savings,” except to pose the question of whether a single person ever has been actually confused about whether that indicates a relationship between the NFL and the grocery store. Or the makers of this thing. Rather, I’m going to talk about television. Specifically, what size television can you watch the Big GameTM on?

The NFL caused a bit of confusion on this score when they sent a cease and desist letter to an Indiana church back in 2007 that was planning on hosting a Super Bowl party for church members, with a fee for attendance and the game displayed on a “giant” TV. (I can’t find a description of the exact size.) In the letter and in subsequent pronouncements, the NFL took the position that it was a violation of copyright law to display the Super Bowl to a public gathering on a screen larger than 55 inches diagonally. In the face of likely congressional legislation in 2008, the NFL backed down and said it would not enforce its rule against church groups. But it still maintains that others cannot display the game publicly on sets larger than 55″.

News stories about the controversy have gotten some parts of the relevant copyright law correct, but are still a bit confusing on the 55-inch “rule” and where it comes from. So I’ll try to clarify. The short version: There is no 55-inch rule, at least not for the game itself. Read More »My Official Super Bowl Television Post

2013 in Fair Use

By any account, 2013 was a big year for the doctrine of fair use in copyright law. It was a big year for other copyright things, too; “copies” and “performances” were much in the news. More on those later, perhaps.

I had it in mind to actually write up synopses and critiques of the principal fair use opinions, but there has been no time. To borrow a phrase from Inigo Montoya, there is too much. Instead: Let me sum up.

I haven’t included cases in which fair use was argued but not relied on as a basis for decision. I haven’t included cases in which fair use was not argued but could have been — or should have been. And I haven’t included cases where fair use played an important role but wasn’t itself a litigated issue (see, for example, the continuing Lenz v. Universal Music litigation).

I have included cases that struck me, and no doubt struck many observers, as important markers on the journey toward understanding what roles (plural) fair use is playing in copyright policy today.

In reverse chronological order, with appellate cases first:Read More »2013 in Fair Use