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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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Privacy & Information Monopolies

First Monday recently published an issue on social media monopolies. These lines from the introduction by Korinna Patelis and Pavlos Hatzopolous are particularly provocative:

A large part of existing critical thinking on social media has been obsessed with the concept of privacy. . . . Reading through a number of volumes and texts dedicated to the problematic of privacy in social networking one gets the feeling that if the so called “privacy issues” were resolved social media would be radically democratized. Instead of adopting a static view of the concept . . . of “privacy”, critical thinking needs to investigate how the private/public dichotomy is potentially reconfigured in social media networking, and [the] new forms of collectivity that can emerge . . . .

I can even see a way in which privacy rights do not merely displace, but actively work against, egalitarian objectives. Stipulate a population with Group A, which is relatively prosperous and has the time and money to hire agents to use notice-and-consent privacy provisions to its advantage (i.e., figuring out exactly how to disclose information to put its members in the best light possible). Meanwhile, most of Group B is too busy working several jobs to use contracts, law, or agents to its advantage in that way. We should not be surprised if Group A leverages its mastery of privacy law to enhance its position relative to Group B.

Better regulation would restrict use of data, rather than “empower” users (with vastly different levels of power) to restrict collection of data. As data scientist Cathy O’Neil observes:
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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.Read More »Solving the Digital Resale Problem