mit copyright seminar 3-13-2015 (reduced file size)

8/9/2019 MIT Copyright Seminar 3-13-2015 (Reduced File Size)

1/53

Internet TV and Copyright Law ! or Aereo vs. the TV " Industrial Com lex

#

Massachusetts Institute of Technology 3.371 3.S171

Law & Technology

Professor Stephen LyonsMarch 13, 2015

Lee GesmerGesmer Updegrove LLP

gesmer.com, MassLawBog.com

http://gesmer.com/http://masslawbog.com/http://masslawbog.com/http://gesmer.com/


2/53

2

1. Reproduce ! i.e., copy "

2. Display Publicly

3. Prepare Derivative Works

4. Distribute Copies5. Perform Publicly 6. Digital audio transmission of sound recordings

Copyright’s Six Exclusive Rights


3/53

3

• Sony Corp. v. Universal City Studios ! 1984 " ! the “Sony” or “Betamax” case” "

• Cartoon Networks v. CSC Holdings! 2008 # ! the “Cablevision case” "

• American Broadcasting Co. v. Aereo ! 2014 "! “

Aereo” "

Three cases:


4/53

4

Legal Background


5/53

5

Concept 1: The “Fair Use” Privilege

Acts that would otherwise be in $ inging are excused for policy reasons

Common examples:

• Quotations in reviews/criticism• Parodies• News reporting • Biographies, scholarly research• Small portion/reasonable purposem


6/53

6

Fair Use

• “Time shifting”

• “Format shifting”• “Space/location” shifting


7/53

7

Concept 2: “Contributory Infringement”

Conduct that intentiona % y induces or encouragesin $ inging acts by others

Examples:

• Online service that encourages uploads ofcopyrighted content

• Online directory that encourages users tolink to copyrighted content


8/53

8

Contributory Infringement

However: “contributory” infringementrequires that rst there have been a “direct”infringement


9/53

9Concept 3: “Volition” or“Who Made the Copy?”

Examples:

• ISP computers automatically create an

infringing copy at the direction of users/ posters = no infringement• Copy shop/course pack created by shop

employees at request of teacher =infringement


10/53

10

Sony Corp. v. Universal City Studios ! 1984 "

! the “Sony case” "


11/53

11

Betamax Video Tape Recorder, circa 1980

Contributory infringement?


12/53

12

A VCR lobbyist “has said that the VCR is the greatest friend that the American lm producerever had.I say to you that the VCR is to the American lmproducer and the American public as the Bostonstrangler is to the woman home alone .”

Jack Valenti, President MPAA, 1982


13/53

The Sony Case

Sony not liable for creating a device thatsome customers may use for infringingpurposes, so long as the technology is capableof “substantial” or “commercially signicant”non#infringing uses.

13

First key holding:


14/53

The Sony Case

Private, non #commercial time#shifting of

television programs $

recording programs to watch at a more convenient time $ is “fairuse,” and therefore does not infringe thenetworks’ copyrights

14

Second key holding:


15/53

Sony 15

1. A copyright owner cannot establishcontributory infringement based on adevice that has a substantial non #infringing use

2. Non#commercial, in#home time #

shifting is fair use


16/53

161960s # Community Antenna

Television ! CATV "


17/53

17

The owner of copyright under this title has theexclusive rights to do and to authorize any of thefollowing:

… in the case of . . . motion pictures and otheraudiovisual works, to perform and display thecopyrighted work publicly ;

17 U.S. Code § 106

Copyright Act:


18/53

18

To perform or display a work “ publicly ” means $ ! 1 " to perform or display it at a place open to the public or atany place where a substantial number of persons outside of anormal circle of a family and its social acquaintances is

gathered; or! 2 " to transmit or otherwise communicate a performance ordisplay of the work . . . to the public, by means of any deviceor process, whether the members of the public capable ofreceiving the performance or display receive it in the sameplace or in separate places and at the same time or atdi% erent times.

17 U.S. Code § 101

Copyright Act:


19/53

19“to perform it . . . at any place where a substantial numberof persons outside of a normal circle of a family and itssocial acquaintances is gathered”


20/53

20

Jimi Hendrix performing Hey Joe atWoodstock ! copyright Billy Roberts "

“to perform it . . . at any place where a substantial numberof persons outside of a normal circle of a family and itssocial acquaintances is gathered”


21/53

21

“members of the public . . . receiving the performance ordisplay . . . in the same place . . . and at the same time . . ..”


22/53

22“members of the public . . . capable receiving theperformance or display . . . in separate places and at . . .di% erent times ” ! Transmit Clause "

7:00 p.m. Monday, Boston

10:00 p.m. Tuesday, New York

3:00 p.m. Saturday, Portland

• Cable• Satellite• VOD


23/53

23

Cartoon Networks v. CSC Holdings! 2008 # ! the“Cablevision" case "

C bl i i S i


24/53

1 46

25 “n”

24

Cust1

Cust25

Cust46

Cust“n”

Cablevision Remote DVR Service

Transmission ofpersonal copy

Remote DVR Server With “n” Subdirectories

Cablevision retransmits with permission

ABC/NBC/CBS/Fox ABC/NBC/CBS


25/53

25

Why Did Broadcasters Care?

• Impacted Nielsen ratings• Made ad#skipping easier


26/53

26

In determining whether a transmission is “to thepublic” the court should consider the particulartransmission, not the underlying work .

Cablevision # Public Performance Right

“Because each &remote DVR ' playbacktransmission is made to a single subscriber using asingle unique copy produced by that subscriber , we conclude that such transmissions are not

performances to the public and therefore do notinfringe any exclusive right of publicperformance”


27/53

27Cablevision # Reproduction Right

No infringement of reproduction rights

because subscribers, not Cablevision,controlled what TV programs to record.Cablevision only provided the hardware

that subscribers used.

Volition # Who makes the copy?


28/53

28Cablevision # Reproduction Right

“In determining who actually "makes" acopy, a signicant di% erence existsbetween making a request to a humanemployee, who then volitionally operatesthe copying system to make the copy,and issuing a command directly to asystem, which automatically obeyscommands and engages in no volitionalconduct .”


29/53

29

American Broadcasting Co. v. Aereo ! 2014 "

! “ Aereo” "

A S i


30/53

1 46

25 “n”

30

Cust1

Cust25

Cust46

Cust“n”

Aereo Service

Transmission ofpersonal copy

Server With “n” Subdirectories

Aereo records

without permission

Over ! the !airTV broadcast

Devices: smart phones, tablets, iTV boxes ….


31/53

31

Aereo Mini # Antennas

32


32/53

32

33


33/53

33

Chet Kanojia , Aereo Founder

34


34/53

34

Barry Diller and 6+ VC investors

35


35/53

35

Aereo

• New York

• Boston• Utah• District of Columbia • California

Broadcaster law suits:

36


36/53

36

Why Do Broadcasters Care?

• “Retransmission” fees ~( 4 billion/year

• “Cut the wire” • “ Aereo business model”

37


37/53

37

"the very existence of broadcasttelevision as we know it" is at stake.

38


38/53

38

• We are a rental service no di% erent thanRadio Shack # we rent the antenna and

DVR, and the consumer controls theoperation. ! volition "

• Unique, individual antennas and copies

Aereo

Aereo argued:

39


39/53

39

Under Cablevision Aereo does not violatepublic performance right:

Aereo at Second Circuit ! 2013 "

“just as in Cablevision, the potential audience ofeach Aereo transmission is the single user whorequested that a program be recorded”

40


40/53

40

Aereo at Supreme Court ! 2014 "

“In light of the purpose and text of the TransmitClause, we conclude that when an entitycommunicates the same contemporaneouslyperceptible images and sounds to multiplepeople, it transmits a performance to them

regardless of the number of discretecommunications it makes ”

Justice Breyer:

41


41/53

41

Aereo at Supreme Court ! 2014 "

“Viewed in terms of Congress' regulatory objectives, why should any of these technological di% erencesmatter ? They concern the behind #the#scenes way in which Aereo delivers television programming to its viewers' screens. . . .”

42


42/53

42

Aereo Supreme Court Decision

“An entity that transmits a performance to individualsin their capacities as owners or possessors does notperform to "the public," whereas an entity like Aereothat transmits to large numbers of paying subscribers who lack any prior relationship to the works does soperform”

43


43/53

43

Dissenting Justices ! Scalia, Thomas, Alito "

The networks’ claim “fails at the very outset because Aereo does not ‘perform' at all. The Court manages toreach the opposite conclusion only by disregarding widely accepted rules for service#provider liability andadopting in their place an improvised standard ! "looks#like#cable#TV" " that will sow confusion for years to come.”

“Guilt by Resemblance” #

44


44/53

44

“It will take years, perhaps decades, to determine which automated systems now in existence are governed by the traditional volitional #conduct testand which get the Aereo treatment . ! Andautomated systems now in contemplation will haveto take their chances. "”

“Making matters worse, the Court provides nocriteria for determining when its cable #TV#lookalikerule applies.”

Dissent . . .

45


45/53

Aereo # Consequences?

45

46


46/53

46

Immediate Consequences

• Bankruptcy late 2014• >100 jobs lost• Broadcaster stocks surged

47


47/53

47

Aereo # The “Take Away”

•Where is the equip. located?•Who owns it?

• Creates incentive to design productsowned by consumers and based in theirhomes

48


48/53

48

Aereo and the “Cloud” # Dropbox

“All your stu% , anywhere”

49


49/53

9

CW: Dropbox is di % erent:• Aereo was built to stream

broadcast television withoutpermission

• DropBox doesn’t know what itsstreaming • Dropbox users are already

“possessors” of the les theystore

50

Fi C A l A F Di h


50/53

First Case to Apply Aereo: Fox v. DishNetwork ! C.D. Cal. 2015 "

“Dish Anywhere With Sling”

51


51/53

Fox v. Dish

• Aereo: its own equipment housed in acentralized warehouse outside

consumers’ homes• Dish w/Sling: programming does not

originate on external servers; consumers

access their own set#top boxes

52


52/53

Fox v. Dish

• User ! not Dish " initiates the “spaceshifting”; subscribers engage in the volitional conduct necessary for directinfringement

• Subscribers space shifting does notinfringe, so Dish not liable forcontributory infringement

53


53/53

Evasion Through Automation vs. ???Technological cat andmouse? # Who owns theequip., where is itbased,? Should

copyright law bestructured so that lawscan be circumventableby clever architecturaldesign and technological workarounds, as Aereoattempted?

vs.

A more exiblestandard that wouldevolve in the courts ! vs.Congress "?E.g.: Focus on whetherthe use is something in which the copyright

owner could reasonablyexpect a royalty ?

mit copyright seminar 3-13-2015 (reduced file size)

Documents