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By David Post

Aereo, and the Strange Case of the “Public Performance” Right in Copyright Law

(David Post)

As you can see in this very informative infographic and blurb, there’s been a LOT of activity recently, with a good deal more on the way, involving the question of whether Aereo’s technology (or that of a copycat service, formerly called “Aereokiller” and now “FilmOn”) constitutes a “public performance” of the underlying copyrighted TV shows.  [In a nutshell:  the technology involves assigning a tiny antenna and a portion of disk space to each subscriber, which allows the subscriber to record and subsequently to view over an Internet connection, anything he/she has recorded from the over-the-air TV broadcasts.  See my earlier blog posting, here].  Is this a “public performance” of the copyrighted programming (in which case Aereo is infringing, unless it obtains a license)?  Or is it a (large) number of private performances, one for each subscriber, in which case it’s not an infringement and no license is necessary.

The issue has the TV industry up in arms – a few months ago, a Fox Broadcasting spokesman indicated that if Aereo’s early victories in the courtroom (in the 2d Circuit) were not somehow overturned, that it would seriously consider getting out of the broadcast business entirely.

It’s a very, very complicated little issue of statutory construction.  The basic problem is this:  the statute defines a “public performance” of a copyrighted work to include “transmit[ing] . . . a performance . . . of the work . . . to the public, by means of any device or process . . .”  The broadcasters say – not implausibly – that that is exactly what Aereo is doing: transmitting a performance of copyrighted programming to the public.  No, says Aereo:  we’re not transmitting “a performance,” we’re transmitting thousands of performances, each one of which goes only to a single subscriber (and [...]

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The History of the Internet, Typography Division, Cont’d

(David Post)

As regular readers know, I have the proverbial bee in my bonnet in regard to the necessity for retaining the initial capital “I” when writing about “the Internet.”  I think it actually matters a good deal — see here and here if you’re interested in my reasons for thinking so.  But in any event, my particular obsession makes me alert to typographical variations in the word, and I recently came across a particularly nice one.

The US v Morris case from back in the late ’80s/early 90s was, for those old enough to remember, a particularly significant cultural moment in the history of the Internet.  Robert Morris, then a young grad student in computer science at Cornell, had — apparently somewhat unwittingly — unleashed the first Internet “worm,” and it put him (and “the Internet”) on the front page of newspapers all around the country.  He was ultimately convicted of violating the then-fairly-new Computer Fraud and Abuse Act (though that didn’t stop him from having a rather distinguished career in computer science, leading to his current position as Professor at MIT).

The Second Circuit upheld his CFAA conviction, in an important opinion written by Judge John Newman (US v. Morris, 928 F.2d 504, CA2 1991).  I had read the opinion years ago, but re-encountered it for a class several weeks ago, and noticed the really unusual way Judge Newman uses the term “Internet.”  (Newman happens to be a wonderful prose stylist, and someone who is careful about his use of words; not only did he, coincidentally, go on to become the 2d Circuit’s pre-eminent voice in copyright matters, he also seems to be the kind of person who would be interested in these typographical and semantic matters, having himself co-authored, with his father, an authoritative geneological re-construction of the [...]

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Ominous Developments on the “Internet Governance” Front

(David Post)

The future of Internet governance is starting to look more and more worrisome, and that should concern anyone interested in the Net as a platform for free and open global communication.  This past week brought us a Declaration by the major Internet standards-setting organizations — ICANN, the Internet Society, the Internet Architecture Board, the World Wide Web Consortium, among others – expressing “strong concern over the undermining of the trust and confidence of Internet users globally due to recent revelations of pervasive monitoring and surveillance,” and calling for “an ongoing effort to address Internet Governance challenges . . .  towards the evolution of global multistakeholder Internet cooperation” and for ”accelerating the globalization of  ICANN  and [Internet numbering]  functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing.”

There’s a fair bit of complicated background and subtext here amidst the gobbledygook of international bureaucratese.  Milton Mueller, over on the Internet Governance Forum,  describes this as “the core Internet institutions abandoning the US government” – which may be something of an exaggeration, but captures some features of what is happening.

But this is more than just blowback from the Snowden revelations and push-back against the US’s prominent position in many of the major Internet governance institutions.  As it happens, I’m all for accelerating the “globalization” of Internet governance, and have said as much for decades; I think that policy-making for the Net — Internet-wide rulemaking binding on all Internet users (as opposed to, say, rule-making processes applicable only to US users, or French users, or Brazilian users, etc.)  – can only be accomplished legitimately by institutions that collectively have some claim to represent the people of the world, all of whom will be affected by Internet-wide rules.  We are, after all, all created equal, and each of us has [...]

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What the Hell Happened? The Campaign Against (and Defeat of) SOPA

(David Post)

I trust that most of you remember the rather astonishing events of late 2011/early 2012, during which something resembling an Internet insurrection helped stop the Administration’s proposed “Stop Online Piracy Act” (SOPA) dead in its legislative tracks.  [I was pretty actively involved in the efforts, and blogged about the events on a number of occasions - herehere, here, ...]

A few months later, after the dust had settled a bit, I began a talk about the death of SOPA with:  ”What the hell happened?”  It sure felt like a tidal wave of opposition to the bill — it certainly felt that way to the politicians in the White House and Congress, who couldn’t disavow their prior support for the bill fast enough, once the heat was turned up (to mix my metaphors).  Where did it come from, and what did it mean?

Yochai Benkler and colleagues at the Berkman Center (Hal Roberts, Robert Faris, Alicia Solow-Neiderman, and Bruce Etling) have published a rather remarkable study that sheds some really interesting light on those questions.  It’s a study of the public debate on the Net leading up to the “mass mobilization” against the bill, using, in the authors’ words, “a new set of online research tools . . . combining text and link analysis with human coding and informal interviews to map the controversy over the relevant 17 months” to analyze “the shape of the networked public sphere engaged in this issue.”  It’s a fascinating picture — actually, a series of pictures, chronologically organized, showing the development of the controversy as websites moved in, or out, of the central focus of discussion.

The data suggest that, at least in this case, the networked public sphere enabled a dynamic and diverse discourse that involved both individual and

[...]

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Our Extremely Messed Up Copyright System: Item 137

(David Post)Sometimes, it is difficult to explain to people the very substantial downside of a copyright (or other IP) regime.  Paul Heald’s new study, reported on here (“The Hole in Our Collective Memory: How Copyright Made Mid-Century Books Vanish”) should help on that score.  As the Atlantic’s headline puts it:  ”A book published during the presidency of [...]

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