“The Cable Defense,” “The Cloud” and More about Causation and Copyright
Last time, I tried to make sense of the Supreme Court’s decision in ABC v. Aereo. But there are a couple of major issues that I wasn’t able to touch on: (1) What’s all this about Aereo now saying it’s a cable system? (2) I thought maybe the Aereo decision was going to hurt “Cloud”-based industries? and (3) are we no longer to look “under the hood” of technology to resolve our copyright issues (after the Court dismissed on argument as relying on technology “behind the scenes”)? I also (4) have some further thoughts about the causation requirement in copyright cases (i.e., all that business about “volitional conduct” and “proximate causation”).
1. Is Aereo a Cable System?
As we all know by now, the Supreme Court ruled against Aereo essentially because Congress had set out in 1976 to ensure that cable systems (or, more precisely, their direct technological predecessors, community access TV systems) were “performing,” regardless of whether you thought of them as broadcasters, viewers, or mere conduits. Further, the Court held that such performances were public because Aereo looked a lot like a cable company, and cable companies perform their…
Note this post was updated the same day it was posted around 9 p.m. my time to address issues raised in one of the comments. I had reversed the polarity on Teleprompter and forgotten that Cablevision pretermitted (i.e., punted) the performance issue on grounds that the performance of a copy of a program earmarked and segregated for the subscriber wasn’t a public performance.
Outlier or Game Changer?
So the Supreme Court handed down its decision in American Broadcasting Cos. v. Aereo, Inc. on the first day of my vacation because, of course it did. It was building up to be perhaps the most significant Supreme Court decision on copyright law in several years. Sure, last year’s Kirtsaeng case could have had far-reaching effects—the “parade of horribles”—but, in the end, all the Court was doing was unknotting a small, terribly-drafted part of the Copyright Act that related to imports. Boring! By contrast, Aereo forced the Court to examine some fundamental concepts of copyright law, could have had far-reaching effects (especially on “cloud computing”), and involved something everybody gets: watching television!
Oh, and once again, a decision I blogged about—and described as “so wrong (yet so right)”— has been reversed. But unlike last time, I feel…
April 17, 2013 | Category: Blog | Tags: Aereo, Cablevision, copyright, digital content, free riding, public performance, ReDigi | Comments: 5
Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.
Free-Riding on a Dream
By coincidence, the SDNY’s rejection of ReDigi’s business model happened at almost the same time as the Second Circuit’s seeming affirmation of Aereo’s business model. This coincidence led to a certain amount of bewilderment. How could one court rule to strengthen copyright at the same time another court ruled to weaken copyright? The answer, of course, is that courts don’t—or shouldn’t—worry about the relatively weakness or strength of copyrights. They’re in the business of implementing the Copyright Act—a task that just gets harder and harder. The main lesson here is that, regardless of the copyright law’s purpose and policies, it is (outside of fair use and a couple of other things) often a highly technical law that can have counterintuitive results.
I believe this images shows part of Aereo’s array of TV antennae, each the size of a dime.
Copyright as Economic Policy
The bewilderment had two sources. First, there are those with an extra-legal interest in the strength or weakness of copyrights. For both content providers, who prefer stronger copyright (but have mixed feelings about fair use), and information providers, who see strong copyright as a nuisance, the courts went 1-for-2. Either ReDigi and…