Matt Schruers

Today, the U.S. Supreme Court will hear arguments in the case of ABC v. Aereo – a dispute which has been billed as likely to shape the future of television.  As earlier coverage here at DisCo has explained, the case also has the potential to alter the future of the Internet, and specifically, cloud-based services.

This copyright case revolves around the New York-based start-up Aereo, who provides arrays of Internet-attached antennae to subscribers, who each use an individually-assigned antenna to access their free local broadcasts, online.  Major U.S. broadcasters don’t like this, since cable services now pay them handsomely in order to carry those broadcast signals to cable subscribers.  Broadcasters have argued that Aereo infringes copyright by enabling its users to access their local broadcasts online in this manner. MORE »

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If you want to understand why excessive contenting “windowing” forces consumers to choose between convenience and copyright compliance, Farhad Manjoo’s New York Times piece last week, “Why Movie Streaming Sites So Fail to Satisfy,” is a great start.  Manjoo explains why, as a result of windowing practices — in addition to licensing complexities — “we aren’t anywhere close to getting a service that allows customers to pay a single monthly fee for access to a wide range of top-notch movies and TV shows.”

If you don’t have the time, try this Venn diagram.Everything-You-Need-to-Know-About-Content-Windowing

 

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This post is part of the Disruptive Competition Policy Forum recap series.

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The perpetual Apple vs. Samsung smartphone smackdown returns to court today, with the latest round of litigation beginning jury selection in San Jose.  As Ev Ehrlich argues at SFGate, the ongoing litigation doesn’t bode well for smartphone innovation.

While this particular offensive does not include any of the ridiculous rounded rectangle design patents that characterized some of Apple’s previous attacks, it nevertheless illustrates some of the continuing problems in the patent system.  While I will leave it to Patent Progress and others to dig through the claims, it bears noting that one of the patents at issue, Apple’s autocomplete patent, seems to be a variant of “+ Internet” patenting that DisCo has described before — the practice of filing claims on known functionality (autocomplete), situated it in a next context (touchscreens).  This Mad Libs approach of patenting seems to tax every generation of technological innovation, from combustion engines to computers to the Internet, and now smartphones.

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Todd Spangler’s piece in Variety yesterday argues that the Supreme Court’s upcoming Aereo case has nothing to do with the cloud.  As Aereo’s day in court approaches, it is being preceded by a wave of “denialism” — grand assurances that a broad interpretation of the Copyright Act’s public performance right won’t have any affect the growing cloud computing industry.

The only unifying characteristic I’ve discerned among the deniers is that none of them are actually in the business of providing cloud services.

As my Aereo primer pointed out, the outcome of this case can have a grave impact on cloud computing.  Spangler tells us this isn’t the case, however, and waves off “the idea that Aereo is akin to Dropbox.”   As far as I can tell, however, no one except Spangler is saying Aereo is the same as Dropbox.  The point is — as my primer post explains — that when the broadcasters describe why Aereo is infringing, the broadcasters could just as easily be describing what happens when you stream your own files from your cloud account.   The broadcasters urge what is essentially a legal fiction: that multiple private transmissions of the same work over the same system, even at different times, should be aggregated into one single public performance.   Unfortunately, and probably entirely by accident, this argument seems to apply to cloud music lockers as much as it describes Aereo.  A service need not resemble Aereo (or Dropbox) to be endangered by a poorly-reasoned Aereo decision. MORE »

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As I wrote yesterday, the House Judiciary IP Subcommittee held a hearing today on the DMCA, with several of the misconceptions I predicted appearing in full force.  Live tweets from DisCo are available here.

One thing I didn’t anticipate was today’s fixation on the word “free” in search results.  It is odd that in the United States the word “free” should be so stigmatized, but several members of Congress took issue with search results that contain the word “free,” apparently with the aim that such results should be suppressed.

Of course, every use of the word “free” is not unlawful, even in relation to content.  Indeed, there is a considerable amount of free content online (including this site).  Some artists give free content away for various legitimate reasons, such as promotional samples.  “Free” is a time-honored marketing term, used liberally.  Many rights-holders now wisely advertise when they are offering free content, e.g., “get a free trial to the song here”, to better compete with pirated alternatives, or to drive other revenue streams, such as live performances, subscriptions, merchandise.  If services started blocking content online using the term “free,” this could easily penalize lawful services providing promotional content in order to crowd out infringing options.

The conversation also focused extensively on the prominence of allegedly infringing search results, even though, as I’ve pointed out before, mainstream search engines are not the primary tool in infringers’ toolbox.  One congressman contended during the hearing that one of the top “two or three” Google results for the Netflix show ‘House of Cards’ was an infringing site.  The screenshot after the jump, taken at that moment, instead shows a host of lawful options.  But even assuming that somewhere in the 730 million results for the program there are results that infringe, that doesn’t necessarily mean that anyone ever actually clicks on those results.  Far more frequently, infringers navigate directly to their preferred sites. MORE »

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Tomorrow, the House Judiciary’s Subcommittee on Courts, Intellectual Property and the Internet is holding a hearing on the safe harbors of the Digital Millennium Copyright Act, Section 512, as part of a continuing reexamination of U.S. copyright law.  We cover this important framework frequently, because it has been instrumental to the growth of the Internet – by many accounts online safe harbors “saved the Web.”  Now that the DMCA is over 15 years old, a number of pervasive misconceptions have developed about its safe harbors.  Let’s consider some of the top DMCA misconceptions that we’re likely to hear tomorrow.

(1) “No one anticipated there would be so many DMCA takedowns.” (Also, “filter because whack-a-mole.”)

One of the critiques of the DMCA is that because it is used so frequently, it must not be working.  It is strange to argue that a system isn’t working when demand for it is going up, but I hear ‘the Internet must be filtered because whack-a-mole’ so often that if I owned the Whac-A-Mole trademark I’d be worried about it going generic. MORE »

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Twenty years ago today, the Supreme Court issued its landmark decision in Campbell v. Acuff-Rose, its most recent consideration of fair use.  The Court made clear, in a unanimous opinion, that a commercial parody was fair use under Section 107 of the U.S. Copyright Act.  A lower court had held that the rap act 2 Live Crew’s “Pretty Woman,” a lewd skewering of Roy Orbison’s saccharine love ballad “Oh, Pretty Woman,” was presumptively unfair because it was a commercial parody.  When the group and frontman Luther Campbell appealed, the Supreme Court reversed, holding that the “more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”  (Some interesting C-SPAN coverage of the case before the Court’s decision, hinting at class overtones of the dispute is available here.)

Perhaps since the early 1980s, when New York courts blessed Saturday Night Live’s riff on the “I Love New York” theme with biblically-themed skit entitled “I Love Sodom,” there had been an understanding that commercial parodies did not “compete” with the targeted work.  This, even though SNL’s send-up of a crime-ridden but image-conscious New York as a modern day Sodom and Gomorrah likely undermined the city’s efforts to promote tourism.

Campbell cemented the viability of commercial parody in U.S. copyright jurisprudence, along with the principle of “transformativeness” as one motivating principle of Congress’s decision to enact fair use.  The idea of “transformativeness,” often associated with Judge Pierre Leval’s influential 1990 article, “Toward a Fair Use Standard,” has helped ensure that innovative new commercial technologies, which often involve copying but still increase the value and accessibility of creative works, can come to market.

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DisCo has written extensively about the Aereo case now in the Supreme Court, (e.g., [1], [2], [3], [4]) but reading some old commentary, I realized we’ve never quite explained precisely how the outcome of Aereo can threaten cloud computing.  The matter seems particularly relevant since briefs were filed in the Supreme Court yesterday in support of ABC and the other broadcasters pursuing Aereo.  (All briefs should eventually appear on SCOTUSblog.)

In short, the Aereo case puts the cloud at risk because when broadcasters have complained about Aereo, their complaints also describe cloud computing.  It isn’t that broadcasters necessarily bear malice toward cloud computing; it is just that when broadcasters complain about how Aereo works, their complaints describe cloud-enabled access to content.  The cloud is caught in the crossfire.

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As Jakob’s post from yesterday notes, last week’s Svensson ruling came as a relief to copyright watchers everywhere when it concluded that a hyperlink to a publicly available work did not constitute a ‘communication to the public’ in a manner that exercised the copyright holder’s exclusive right in that work.  (Let us not ask, at the moment, how copyright law could come so close to doing something so outlandish as requiring every hyperlink on the World Wide Web to be licensed.)

The Court of Justice for the EU (CJEU) arrived at that point through a curious analysis: a hyperlink to another server is communicating the work (notwithstanding the fact that a hyperlink is merely an instruction, and the actual content upload is done by the hosting party), but a link is not communicating to the public because the rights-holder has already done that, and the hyperlink merely makes the work available to the same “public taken into account by the copyright holders when they authorised the initial communication.” (para. 27).

Stated simply, the conclusion was: “since there is no new public [resulting from a hyperlink], the authorisation of the copyright holders is in any event not required for such a communication to the public.” (para. 30).

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