Aereo
2nd Circuit: Aereo streaming of individual over-the-air TV feeds via internet doesn't violate copyright law
The Second Circuit has held in WNET v Aereo (PDF) that sending a unique stream of over-the-air TV signal to customers via the internet isn’t a copyright violation.
Aereo assign each of its subscribers their own personal antenna and stream to comply with a previous Second Circuit decision. In other words, Aereo could provide its service with one antenna, but it needs to use one for every subscriber. The use of one antenna for all subscribers, as the Second Circuit held in its 2008 Cablevision opinion, would likely constitute an unlawful public performance.
Judge Chin says in his dissent that he isn’t pleased by this technique:
Aereo’s “technology platform” is, however, a sham. The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.
Aereo’s technology isn’t an attempt to avoid the reach of the Act. It’s an attempt to comply with the Second Circuit’s own characterization of the Act’s meaning and purpose. The absurdity of the situation arises not from Aereo’s attempt at a “sham,” but from the outdated Copyright Act itself.
A quick glance at the rest of Judge Chen’s dissent suggests he may make some reasonable points distinguishing Aereo from the DVR service at issue in Cablevision, so I’ll withhold my own final thoughts on this case until I’ve read the Aereo opinion through.
But copyright law needs fixing. It was written during a time when the cost of copying was non-trivial, and copies were typically finite and controlled centrally by the rightsholder. There is no longer any non-trivial cost to copying. Whether between servers or from a server to your computer, the internet is nothing more or less than a giant copy-making machine. This doesn’t mean we need to weaken copyright law (although shorter terms would be more in line with copyright’s Constitutional imperative), but we do need to adapt it to the modern world.
Professor David Post, whose copyright class I took at Temple Law, signed an amicus curiae brief in this case late last year—here’s my post about it.
Professor David Post: Copyright is meant to benefit the public
Professor David Post: Copyright is meant to benefit the public
Professor Post, writing at The Volokh Conspiracy about the brief he helped write in the Aereo case:
copyright law does not exist for the benefit of authors; it uses the benefit granted to authors because that is a means to increase the creation and the availability of creative works to the public.
It’s important to note that this is not the Professor’s opinion, it is derived from the Constitution and the ways in which the Supreme Court has interpreted the Constitution (particularly Article I, § 8, clause 8).
The issue in this case is whether it is violative of copyright law for a company, Aereo, to essentially rent small digital television antennae to its customers that enable those customers to stream broadcast channels over the internet. Professor Post and his co-authors on the brief argue that it is not:
the court’s role in construing the statute is not to produce maximum authorial reward, but maximum public benefit. Where that means (as it often does) that it is the copyright owners who must persuade Congress to address the matter and adjust the balance so that it tips more in their favor, they are entitled and well-equipped to do that, as they have done so often in the past.
Read the amicus brief here.