Monday, October 1, 2012

Three reasons the ex-Register of Copyrights doesn't like change (and one reason he's wrong)

"[Aereo] appears to have been designed by a copyright lawyer peering over the shoulder of an engineer to exploit what appeared to Aereo to be a loophole in the law and shoehorn the Aereo business model into the Cablevision decision"
Designed by a copyright lawyer... He says that like it's bad!

Okay, maybe I'm kidding. And some background may be helpful.

Ralph Oman, the retired Register of Copyrights (the person who runs the office that handles copyright registrations), has filed a brief in the ongoing Aereo litigation. Aereo, as you may know, is a service that uses thousands of little antennas to capture over-the-air TV broadcasts and stream them. One stream per subscriber. Why not have one big antenna? Well, that takes some explaining too.

I've previously written about the Cablevision judgment in another context, but it's the heart of Aereo's business plan. In Cablevision, a cable provider wanted to provide remote DVRs for subscribers who wanted DVR facilities but not in their home. Those subscribers could tell Cablevision to record a program for them and stream it later. Cablevision's activities were found to be legal but only because they were recording an individual copy for each subscriber: if they had been making one master recording and multiple copies, that would be prohibited.

Aereo works in a very similar way: one stream per subscriber. The networks sued, and the court that heard the case said that Aereo could continue operating because it found the same loophole as Cablevision. The networks appealed, and Oman has taken their side giving three reasons why he thinks the networks should win.
  1. Copyright is a property right. Its owners have broad protections and technology shouldn't be able to circumvent those.
  2. US copyright law protects creators' rights in a technologically-neutral fashion without privileging one type of content creation over another.
  3. What Aereo is doing is the type of thing that Congress meant to prohibit, so the court should find that Aereo is breaking the Copyright Act.
The thing is, Oman's argument seems almost wilfully blind to one very important thing: digital rights management technology operates every day to prevent activities like fair use permitted to non-creators by Congress. DVDs are copy-protected, and it's illegal to rip even 5 seconds of a DVD because that requires you to circumvent a technology that exists for purposes of preventing copies, even if what you want to do with the 5 seconds would otherwise be fair use. So it's disingenuous for Oman to say that Congress intended to provide broad protections to copyright owners without also noting that Congress intended to give certain opportunities to secondary users.

Put another way: as well as broad protections for copyright owners, there are limits. A court is totally within its rights to find that Aereo hasn't found one of the latter. But a court can't say that the limit shouldn't exist.

LegalMinimum post on 1DollarScan that summarizes Cablevision case:
Techdirt article on Oman brief, including embed of the brief:


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