Tag Archives: Copyright

“I don’t even own a TV”—Aereo (Part Two)

Originally posted 2014-10-26 19:37:31. Republished by Blog Post Promoter

aereo-logoFamiliarity of the reader with Part One is presumed.

As I read the Second Circuit decision, I was pleased—for reasons I can’t quite, and won’t bother trying to, articulate—that the appellate court was affirming the denial of a preliminary injunction in part, at least, because the granting of the injunction would probably have “severely harm[ed] Aereo, likely ending its business.”

Yet I was at the same time bothered by something I couldn’t quite put my finger on, until I did, and it was nothing other than the acknowledgment by the Second Circuit (immediately preceding the one just quoted) that “the [district] court concluded that the Plaintiffs had demonstrated a likelihood that they would suffer irreparable harm in the absence of a preliminary injunction.” Which means, of course, that right now—and since March 14, 2012, when Aereo began providing its service to subscribers… and through tomorrow, and the day after, and the day after that… until such time as the plaintiffs prevail in the two lawsuits pending in the Southern District of New York (and are awarded a permanent injunction), an eventuality Judge Nathan has deemed unlikely as a matter of law, which ruling the Second Circuit has affirmed… the plaintiffs, every broadcast network in New York City, are being irreparably harmed.

How, exactly? The appellate decision doesn’t discuss the harms to the plaintiffs, because it doesn’t need to. The Second Circuit agreed that the plaintiffs “are not likely to prevail on the merits,” so its discussion of the harms claimed by each side of the dispute are minimal. “Plaintiffs do argue that any harm suffered by Aereo should be disregarded in the balance of hardships analysis because Aereo’s business is illegal,” the Second Circuit decision reads, “…[b]ut this argument hinges on the conclusion that Aereo’s business infringes the Plaintiff’s copyrights,” which the court concluded it does not, at least “on the limited question before us… whether Aereo’s transmission of unique copies of recorded programs to the Aereo users who directed that they be created are public performances.” So we must seek our answer elsewhere. Perhaps in the district court opinion.

But before we look there, let’s think about this like regular folks. Regular folks don’t read court opinions. Regular folks ask whether something feels right or wrong. And this feels at once both right and wrong.

Imagine that you live in New York City. As a NYC resident, when you’re not at a Yankees game or ice skating at Rockefeller Center or having lunch with, say, Michael Bloomberg at Ray’s Famous Original Ray’s Pizza, you might watch some broadcast television, which you don’t pay for, since you have an antenna attached to your top-of-the-line widescreen HD set in your 350-square-foot studio apartment that you share with a roommate and a cat. But when you get home from your pizza date your roommate and his girlfriend and her friend are using the TV to play video games (only ironically, though)… but you’re not out of luck, since you’re an Aereo subscriber! So you take your iPad to your freecycled futon in your corner of the room and you log in and request that the new episode of whatever show everybody likes that’s playing right now be streamed to your Internet-capable device.

Where’s the harm in that? Read More…

Guest Post: Fair Use or Foul Ball?

Gregory Winsky

Gregory J. Winsky of Archer & Greiner, PC

See below for more information about my partner Greg Winsky, who is just snarky enough to merit a guest post on LIKELIHOOD OF CONCLUSION on a topic I’ve been covering — and inviting guests to cover — for years despite his being way overqualified as a real, live intellectual property lawyer.

When copying 20,000,000 books without permission is not copyright infringement

Jim Bouton’s last pitch to Google wasn’t Ball Four, at least according to the umps of the Second Circuit who decided — after replay — that the digital giant had smacked the pitcher-turned-author’s hanging slider more than 330′ directly  over the foul pole boundary of the short porch in right.

In The Author’s Guild v. Google Inc., a three judge panel of the Second Circuit Court of Appeals affirmed a grant of summary judgment in favor of Google by the District Court of the Southern District of New York against the former Yankee pitcher, one of the named plaintiffs, and The Author’s Guild, the nation’s professional organization for writers, once headed up by such luminaries as Pearl Buck and Erica Jong (which organization had been found to lack standing to bring claims of copyright infringement on behalf of its members).

The 2013 summary judgment decision held that Google, having made digital copies of the full text of tens of millions of books without the permission of the authors and having provided a publicly available search function with an electronic viewer that copies out “snippets” of works retrieved, had not infringed Bouton’s, nor anybody’s, copyright, because Google’s digitization was “transformative” and therefore constituted “fair use” under the Copyright Act.

BallFourStating off the bat that “[t]his copyright dispute tests the boundaries of fair use, “the Second Circuit expanded the strike zone of the Fair Use exception in Section 107 of the Copyright Act, even in the face of the assertion of the plaintiff/copyright holders that Google’s “ultimate profit motivation” in the creation of this new monolithic digital library1 should obviate a finding of fair use under first prong of the Section 107 analysis, that is, “whether such use is of a commercial nature.”

The appellate court disagreed, stating that “we see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose.”

Read More…

About Face


Originally posted 2009-02-18 10:41:19. Republished by Blog Post Promoter

The New York Times reports the latest on the Facebook “license” story:

After a wave of protests from its users, the Facebook social networking site said on Wednesday that it would withdraw changes to its so-called terms of service concerning the data supplied by the tens of millions of people who use it. . . .

Earlier this month, Facebook deleted a provision from its terms of service that said users could remove their content at any time, at which time the license would expire. It added new language that said Facebook would retain users’ content and licenses after an account was terminated. . . .

In a Facebook posting on Wednesday, Mr. Zuckerberg said: “A couple of weeks ago, we revised our terms of use hoping to clarify some parts for our users. Over the past couple of days, we received a lot of questions and comments about the changes and what they mean for people and their information. Based on this feedback, we have decided to return to our previous terms of use while we resolve the issues that people have raised.”

The posting said the decision to return to previous terms was “the right thing for now.”

That covers it, right?   I no longer have to worry that Facebook will leverage my worldwide fame for its nefarious purposes after I finally grow up and delete my account forever.

Okay, I wasn’t really worried about that.  Then again, being an adult I’m not someone who’s posted dozens of pictures of himself hoisting brewskies, tangled up in piles of flesh or whatever, and neither are my “friends.”

But this does seem to be a prevalent practice among people who may some day realize that they want to be adults, too (i.e., college students), or at least that they may want to get a job somewhere.  Is that what’s animating the outrage? Read More…

Google Books settlement takes it on the Chin

I raised questions about the Google Books settlement ages ago.

Now some of them have been answered, and Judge Denny Chin’s answer is “no”:

While the digitization of books and the creation of a universal digital library would benefit many, the [Amended Settlement Agreement] would simply go too far.  It would permit this class action – –  which was brought against defendant Google Inc. (“Google”) to challenge its scanning of books and display of  “snippets” for on-line searching – –   to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners.  Indeed, the ASA would give Google a significant advantage over competitors,rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyondthose presented in the case. . . .

Read More…

Authors Guild v. Google: Judge Chin’s decision in favor of Google Books

Anyone looking for the Author’s Guild v. Google decision on the Southern District of New York website is going to have a hard time: It’s working like the Obamacare website right now, probably because everyone is hitting it looking for a copy of the opinion.

Well, here it is, courtesy of Gigaom:

Google Books ruling on fair use.pdf

Blog posts at LIKELIHOOD OF CONFUSION® about this case are collected at this fairly recent post.

The Great Copyright Crackup

ASCAP Launches Infringement Actions against Establishments Performing Copyrighted Music without Permission: The beginning of the end?

I’m not saying they’re not entitled. I’m not saying the law’s not on their side. I’m saying the big-money copyright ownership gang — the ASCAP‘s, the RIAA‘s, the MPAA‘s — gives the distinct impression of Japanese kamikazes. They’re suing everyone and everything, they’ve lost consumers… it’s quite a thing to see.

Infinite loop (updated and bumped)

Essex County historic courthouse detailOriginally published on July 22, 2011; see update at bottom!)

It can only mean one thing when you read this in a news article:

On Friday morning, the RIAA released a brief statement; “We disagree with this decision and are considering our next steps.”

That’s right:  It means U.S. District Court Judge Michael Davis has once again — for a third time — knocked down a jury’s copyright verdict against  Jammie Thomas-Rasset for the unlawful act of uploading other people’s music to the Internet so others could have it for free.  This time the remitittur was from $62,500 to $2,250 per song.  Yes, per song.

I’ve never suggested that’s uploading music to the Net okay.  It’s not, and consistent with what I said yesterday, whether it’s just plain disregard for other folks’ rights and property or ideologically-tinged civil disobedience, if it’s unlawful it should be punished.

But as I also said in a post called “‘Infinity Dollars’ — IP damages and the jury” a while back, where is the sense of proportion among people, the so-called “peers” of the defendant, who could possibly vote for such a preposterous verdict?  Is its source news reports about free-money-type verdicts given out like Pez candies to all kinds of legal claimants, utterly out of proportion to the damages suffered?  Is it some kind of reverse weird class consciousness punishment thing that I can’t begin to comprehend?  Is the distortion caused by allowing the jury to consider the punitive and seemingly arbitrary range of statutory damages available in copyright?

Well, it sure isn’t found in the law or the Constitution, not according to me or according to Judge Davis, who wrote, this time around: Read More…

Digital Analogy: Behind the scenes of Aereo


MDB: Walks like a duck.


“In a case with far-reaching implications for the entertainment and technology business, the United States Supreme Court ruled on Wednesday that Aereo, a television streaming service, had violated copyright laws by capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee. …

Justice Stephen G. Breyer, writing for the majority, said the service was ‘not simply an equipment provider,’ but acted like a cable system in that it transmitted copyrighted content.” – The New York Times


Stephen BreyerBreyer, J.: We must decide whether the respondent infringes the exclusive rights of copyright owners by selling subscribers a technologically complex service that allows them to watch television programs over the Internet at about the same time as those programs are broadcast over the air.

I am of the opinion that, viewed in terms of Congress’ regulatory objectives, the behind-the-scenes technological differences do not distinguish the respondent’s system from cable systems, which need to get permission to broadcast copyrighted content. Even though cable systems depend in large part upon the use of cables—whereas the respondent does not—the respondent’s set-up is essentially the same.

U.S. Supreme Court Justices Pose For Group PhotoSotomayor, J.: Aren’t cables just bundles of wires, though? I believe that they are. And we heard testimony that the respondent’s physical set-up—the machines in a warehouse in Brooklyn—does use components that themselves have wires. It would seem to me, then, that the respondent effective admitted that its system depends on cables, and therefore the conclusion that the respondent’s system is a cable system is not at all a hasty one.

And I graduated with honors from Princeton, albeit with a degree in History. But it’s not as if this is a complicated technological question that requires any specialized knowledge to answer.

Justice RobertsRoberts, C.J.: I agree with my colleagues that the respondent’s electrical contrivance is basically a machine built to infringe upon the exclusive rights of copyright owners, but I take issue with the comparison of the respondent’s apparatus to a cable system. To my mind, the respondent’s appliance is most like an artificial satellite, and specifically Sputnik 1. As my brothers and sisters on the bench will recall, the so-called “Elementary Satellite” boasted four external radio antennas to broadcast radio pulses.

Similarly, the respondent houses thousands of dime-sized antennas, each of which receives a television broadcast, which a transcoder then translates into data that can be transmitted over the Internet. We can not risk another so-called “Space Race.”

Justice KennedyKennedy, J.: Judge Roberts, I remember Sputnik. I knew Sputnik. Sputnik was a friend of mine. Judge Roberts, the respondent’s system is no Sputnik. The respondent’s system is more like——

Roberts, C.J.: That was really uncalled for, Judge Kennedy.

Kennedy, J.: You are the one that was making the comparison, Judge Roberts. Frankly, I think that the respondent’s system and the Soviet Union’s polished metal sphere—the one whose launch ushered in an age of new political, military, technological, and scientific developments—are so far apart in their objectives that I’ve completely lost my train of thought. No, wait! I remember: The respondent’s system is like a steam locomotive, and railroads were very good for America. I vote to acquit.

Justice KaganKagan, J.: There’s an old saying: “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.” I have given the respondent’s system, as it was described and explained to us in detail by lawyers for both sides during oral argument, and as the records of the Patent Office illustrate it, and I have reached the conclusion that what we’re talking about here is a duck.

But I mean that literally. The respondent’s system is an actual duck, in that it is a waterbird with a broad blunt bill, short legs, webbed feet, and a waddling gait. Interestingly, ducks themselves are often confused with several types of unrelated water birds with similar forms, such as loons, grebes, gallinules, and coots.

Breyer, J.: I have been called a “coot,” a term that I understand means “a foolish or eccentric person, typically an old man.” Read More…


We wouldn’t that happening to you or to me.  So this week, while I am guest-blogging at Overlawyered, I will probably not have all that much to say that’s new over here.

I can, however, recommend some fine, very recent Overlawyered posts that are topical to this blog.  These two are by me:

  • Paulie Unsaturated:  About the silly trademark lawsuit between one Paulie and another Paulie.  One of them is on a TV show.  The New York Post, meanwhile, is utterly confused by the whole intellectual property concept.  Or concepts. Hilarity ensues.
  • Assigned Counsel:  The latest revolting developments in the Righthaven lawsuits.
These two aren’t by me, but should have been LIKELIHOOD OF CONFUSION® posts themselves, and perhaps someday they will be:Edison's first phonograph
  • Vintage Sound Recordings:  Many such finds are lost in a copyright maze, applying American copyright rules that “infuriate scholars, archivists, musicians and the conservationists who preserve fragile recordings. They fret that by the time the recordings become available, many will be beyond salvation.”
  • Annals of Criminalization: “The Senate Judiciary Committee has unanimously approved S. 978, a bill that would raise from a misdemeanor to a felony the unauthorized performance or streaming of a copyrighted work when the infringement takes place at least ten times and either reaps $2,500 or more in revenue, or avoids the payment of license fees whose fair market value would exceed $5,000.”  Walter links to two dissenting opinions about whether this is such a bad thing or not.

Best of 2011: What “beating Righthaven” means

First posted November 3, 2011.

Supreme Court and U.S. District CourtInstapundit links to Donald Douglas’s blog post, Beating Righthaven.  Excerpt:

Righthaven files “no warning” lawsuits. That is, it gives no advance notification to defendants, which violates the norm of providing “take down notices” to those suspected of copyright violations. By doing this, Righthaven — which made a speciality out of suing small-time bloggers and “mom-and-pop” businesses — was able to scare the bejesus out of its targets, who then would settle out of court generally in the three to five thousand dollar range. Defendants were threatened with the possibility of a $150,000 judgment and the forfeiture of their website’s domain name (URL address). . . .

Righthaven’s model is entirely predatory, and the company soon earned everlasting enmity by filing lawsuits against folks who were unemployed, on public assistance or disabled. Righthaven, for example, sued cat-blogger Allegra Wong of Boston, who was unemployed and receiving “financial support from a companion.” Righthaven also sued Brian Hill of North Carolina. Hill is autistic and chronically ill and is supported by Social Security disability benefits. My attorney David Kerr successfully defended Hill, whose story was featured in the New York Times, “Enforcing Copyrights Online, for a Profit.”

There’s a lot that’s “frightening as hell” going on out there with IP “enforcement” — a word I didn’t put quotes around when I used to do it for Brands You Must Know, because the kind I used to do didn’t need them.  It was legitimate, based on easy to comprehend ownership rights, consumer protection concerns and, yes, a concept of fair warning even to a lot of defendants who didn’t deserve it all.

Now IP is a racket.  Most of the readers of this blog practice IP law, and know exactly what I mean — because of what they do and, well, because they read this blog, and have surely detected a turn in my attitude toward the topic from years past.

Practical lawyering in an area of law I actually like often disgusts me now.

Look, I “majored” (not really how they designate this where I went to school, but stick with me) in economics — focusing my learning not in money or finance, which I know little about, but the prediction of human behavior when incentives are provided, withdrawn or distorted.  And I “minored” in political science.

So I was not born yesterday.  I have always understood that much of what is happening in IP law is entirely predictable once we understand that the value of the estates in intellectual property has skyrocketed, for any number of reasons, unpredictably.  But from that premise, it is not news that the incentive to capture rent — get as much of the action as possible — will rise concomitantly, leading to a rational increase of investment by stakeholders in making changes in the regime governing the allocation of such rights.   Read More…

“Aereo” smiths (part two)

aereo-logoIn part one of this post I laid out the following propositions:  (a) We operate in a common-law system, so want and expect judges to apply the law to new factual situations; (b) intellectual property law is — as the Aereo case demonstrates — the very fount of new factual situations in our time; (c) lawyers try to navigate this system on behalf of clients but often find themselves or their clients being accused of cynical manipulation of the law for doing so; and (d) judges are making substantial policy decisions that not only affect the development of intellectual property law but have far-reaching consequences on commerce, culture and governance.

The last point in yesterday’s post concerned the judicial gloss on the Copyright Act, by way of the of the Supreme Court in Sony and the Ninth Circuit in Napster, by which it was decreed that the fair use as defined under the Act permitted time-shifting (recording Carson on your Betamax while you’re at work) and at least certain kinds of space-shifting (accessing media bought in one format via another, typically online format).  In Aereo, now, the Supreme Court is going to decide what the Act has to say about what some call “place-shifting.”

But  the Act doesn’t say a thing about any of this shifty business.  So aren’t the courts just winging it?  Well, no.  They’re engaging in the business of judging, as understood in Angl0-Saxon law.  But they aren’t deciding whether the equitable doctrine of mistake applies to a hitherto-unknown cow pregnancy or how to apply the ancient principle — judge-made in the first instance — of proximate cause a new industrial paradigm:  They are interpreting a statute representing very specific legislative policy decisions.  While the policies underlying copyright are not necessarily the ones the RIAA and friends would have you think they are, at least the legislative process operates within the confines of modern representative democracy.  What happens, however, when judges, um, circumvent that process and make their own policy decisions about copyright?

It’s not entirely fair to say that they are circumventing.  They’re mostly just judging.  As Michael Carroll, now a professor of law at American University put it in this 2002 law review article,  “copyright law has become quite complex and much of the Copyright Act . . . reads like  a very finely detailed contract.”  A contract, that is — as he says — “worked out among industry representatives and enacted by Congress.”  That’s “enacted by Congress” (Congress is supposed to be “us”) in the sense of “please, sir may I have another.”  But Congress and the Copyright Act simply can’t keep up with change.

Now, if you’re like me you may not like the idea that judges create policy and even thwart democracy on social issues, as they do with depressing regularity.  These rulings have a much bigger impact on our society than whether you can watch some stupid show or sporting event on your iPiece from Jupiter at 4 AM.  But we’re talking about something different here, part of which is judges actually doing their jobs.  While Congress can ignore problems or refuse to wrestle with hard questions, and mostly does so or even makes things worse by acting (just ask Judge Michel), courts can’t ignore the questions that come to them about whether a certain technology is infringing by saying, well, I don’t see anything here about no shifting.  When an issue of how the law as of that moment should apply to a new technology — or a new “legal head fake” – comes up and qualifies as a real case or controversy, judges have to make the call.

But what calls!
Read More…

“Aereo” smiths (part one)

aereo-logoUPDATE, June 25, 2014:  The Supreme Court has ruled.  [Still, read this.  Then read this. — RDC]

If you are a real IP lawyer, or have a TV, or read this blog, you probably already know what Aereo is.  You probably also know that the Supreme Court heard oral argument about this Aereo business last week.

But let’s just say I don’t know what Aereo is.  If I didn’t know before extremely recently however — given that I don’t have a TV, in fact — I’d need a short, simple definition, because while I care about intellectual property law i don’t care all that much about TV.

So based on the back-filling I did today at the Copyright Society’s New York Chapter luncheon, which featured a panel of Aereo stunt men, I would say this captures it nicely and simply:

Here, briefly, is how Aereo works: You pay $8-ish a month, and get assigned a mini-antenna, roughly the size of a dime, that is located in a warehouse in Brooklyn. Aereo has thousands of these antennas, each of which is assigned to a single user and connected to a single DVR-like device. When you want to watch, let’s say, “The Voice,” Aereo’s app pulls the show from your antenna, streams it to your device, and makes a copy that is only viewable by you. If 40,000 other Aereo users are watching “The Voice” at the same time, there will be 40,000 dime-sized antennas streaming 40,000 identical copies of the show onto 40,000 devices and into 40,000 DVRs.

Get it?  In other words, Aereo is a variation on what Matthew David Brozik called the now-defunct Zediva service in a post from 2012:  “The world’s longest extension cord.”  It’s a system to watch TV that you pay for but not quite where it was supposed to be delivered — designed under the close auspices of a patent lawyer, of course.  Or a copyright lawyer maybe?  Or a both of them lawyer:

Aereo’s entire business model is based on a legal head-fake. Under copyright law, 40,000 people with their own antennas can watch TV at home for free, but if you want to have one giant antenna that picks up TV shows and distributes them to an audience of 40,000 people, the law calls that a “public performance,” and you have to pay a copyright fee to do it. Aereo didn’t want to pay those fees, so it figured out a way to make what is essentially a simultaneous mass broadcast look like lots of little broadcasts.

Trademark lawyer Ron ColemanYeah!  Copyright lawyer!

Can’t you just see the guy with all the latest jurisprudence on this kind of thing propped up in front of him while he tells the engineers and that sort of person where to plug in the sidebanger and how far he can string out the whoseamacallit?

Not that there’s anything wrong with that, though — right!  Or, maybe yes?

This seems to be an issue, actually:  “Legal head fake,” says that last excerpt.  Another take on last week’s Aereo show:  “Oral argument revealed a widespread disposition to view Aereo’s business model as too clever by half.”

Really? This idea — that the law’s job is to look past mere compliance and “see what’s really going on” — frequently results in justice.  Here, however, it bothers me. Read More…