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 The absurdity of the situation arises not from Aereo’s attempt at a “sham,” but from the outdated Copyright Act itself.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.

David Post, writing at The Volokh Conspiracy:

The Report proposes a series of rather radical — in the Jeffersonian sense — reforms, from dramatically shortening the copyright term (a no-brainer, actually) to expanding fair use and limiting the damages from infringement claims.

The report’s recommendations don’t go quite as far as my suggestion that fair use should be assumed rather than merely an affirmative defense, but Professor Post is right to highlight the opportunity for the GOP to differentiate on this issue.

In fact, I’m not sure there is much in there with which I would disagree, excepting the over-the-top (and even italicized) final sentence of the report’s conclusion:

Current copyright law does not merely distort some markets – rather it destroys entire markets.

That’s wrong. The current US copyright regime limits access, hinders creativity, and dampens innovation, thereby frustrating copyright’s Constitutional purpose. That fact, and I do consider it a fact, must be the foundation of the copyright reform we need in this country.

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.

Professor David Post of Temple Law served as an expert for the plaintiffs — yes, sex offenders — in this case. His focus, as he points out in his Volokh Conspiracy post, was on the overbroad nature of the statute barring internet use by sex offenders, which he believes, and the United States District Court for the District of Nebraska agreed, was beyond what the First Amendment allows.

Your first thought might be “who cares about a sex offender’s free speech rights?”

The answer, of course, is that the Constitution cares, particularly after they have served prison time and otherwise complied with constitutionally sound penalties for their crimes.

The core of the court’s holding lies in the following passage:

The ban not only restricts the exchange of text between adults; it also restricts the exchange of oral and video communication between adults. Moreover, the ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.¹

This looks to me like a well-meaning statute, meant to keep sex offenders away from kids online, that was very poorly drafted. You could achieve the desired goal using far narrower provisions. I hope someone proposes a corrected statute to that effect.

Mr. Eugene Volokh congratulates my former copyright law professor David Post of Temple Law on having a blog post of his cited in a 9th Circuit opinion (PDF).