Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established. That is especially so if that technology poses grave dangers to the exclusive rights that Congress has given copyright owners. Commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability. That is what Congress intended.
Translation: "The courts are in business to protect us, not you". This, broadly, has been their position from the beginning. It's ridiculous, sure, but predictable.
Thanks, that's less hyperbolic than the title, but I don't think you've quite captured what he's saying either. I think he's saying if you invent a new tech, YouHolodeck, you're not magically exempt from copyright law and you can't just post existing copyrighted material ("but it's different, it's holographic"). Existing laws should apply, without needing constant updating ("on the internet", "in the holodeck", "in the singularity").
If you want an exception you have to ask for it, you don't get one by default. That does not mean the new technology is illegal. If Disney says no Mickey Mouse in holospace, then no Mickey Mouse in holospace, but you're still going to be free to post holos of your local street corner mime doing his thing.
>I think he's saying if you invent a new tech, YouHolodeck, you're not magically exempt from copyright law and you can't just post existing copyrighted material ("but it's different, it's holographic"). Existing laws should apply, without needing constant updating ("on the internet", "in the holodeck", "in the singularity").
I don't agree that he's saying that. The issue is that (leaving DRM circumvention tools aside) standard copyright law doesn't prohibit distribution technologies at all, just infringement. Hollywood doesn't like that -- they want to be in charge of what distribution technologies people are allowed to create, regardless of what they're used for. So their end run around it has two parts: 1) They refuse to sanction the use of the new technology for their own content, and then 2) they argue that because it isn't sanctioned by the major players, substantially all use must be infringing and dissemination of the technology itself (regardless of use) therefore induces that infringement and has no substantial non-infringing use.
It isn't about Mickey Mouse and the local mime. Aereo doesn't pick which channels its users watch. Its users can use the technology to watch PBS broadcasts (e.g. of your local mime) that are distributed under Creative Commons or other permissive licenses, or Presidential speeches that as U.S. government works fall immediately into the public domain, or use the technology to record video that the users have negotiated a separate license for with the copyright holders, or make a variety of legal fair uses of the plaintiffs' copyrighted material. Or the users can use it for blatant infringement, e.g. to record sitcoms and burn them to DVDs to sell in the street. But that's all between the copyright holders and the individual users. Aereo is just providing the technology -- and Hollywood is trying to stop the technology, not the infringement.
Did you read the amicus that Techdirt is (poorly) summarizing? Because I read your comment and I can't find anything in it that refers to what Oman actually said. You instead seem to be arguing about what "the content industry" "wants". The content industry obviously wants a lot of silly things, but we're discussing a specific court filing --- more importantly, that's what 'tedunangst is talking about, and so if you're not talking about Oman's filing it's very weird to say he's wrong.
In the filing (which rabidsnail quoted above) Oman makes the argument that not enjoining use of a technology (rather than an identifiable act of infringement of a particular work in a specified context) is to exempt the distribution technology from copyright liability. That is clearly nonsense -- find a user using it for an act of blatant infringement and you'll be able to collect damages or enjoin that infringement. But that isn't what they're asking for. They aren't trying to stop just the infringement, they are (as I said) trying to stop the technology itself.
They're asking for a veto -- not on using new technology to distribute Mickey Mouse, but on using new technology for anything because someone could (and probably will) use it to distribute Mickey Mouse.
Saying that the vendor of a product carries the burden of persuasion that their product isn't solely intended for infringement is very different from suggesting that all technology should be enjoined by default. Do you think Oman is also arguing that copy shops should be enjoined by print rightsholders? If you'd read the whole amicus, rather than a quote out of context, you might have to ask yourself that question.
>Saying that the vendor of a product carries the burden of persuasion that their product isn't solely intended for infringement is very different from suggesting that all technology should be enjoined by default.
I'm not clear on how it's different. If the product is solely intended for infringement then it gets enjoined, right? So they're arguing that by default, unless the vendor can prove otherwise (the vendor having the burden of proof), the product should get enjoined on request.
So he's saying that we should have exactly what we always had? New technologies were never exempt from following copyright law.
What he's really saying is that he doesn't like that some technologies are actually legal (like Aereo), not because they're new, but because they fall under fair use conditions. And so he wants to kill them by making them "illegal until proven legal".
That is what I think he's saying. I know, it's disappointing when it's not rage worthy. (And if I'm wrong and it is rage worthy, is there any point to reading about it besides getting all ragey?)
As for Aereo, I like what they're doing (and wish it were available in more places), but even so, I think they're navigating a fine line between the letter and the spirit of the law.
You don't want to lose sight of the fact that he's using this argument to support an injunction; what he's doing isn't quite as benign as saying "all existing laws should apply", because the existing laws don't promise preliminary injunctions in every case where technology butts up against copyright.
On the other than, this is a case involving a product that has no purpose other than the one that the content producers say directly infringe their rights; in other words, it is at first blush a better than average candidate for an injunction.
But then back on the other hand, he's making general points, not points narrowly tailored to cases like Aereo.
I don't think that is what he is saying. I think the key sentence is the first one, not the last in the quote: the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established.
In other words, the burden rests with the one exploiting a new technology that invades someone's copyright. He is not saying that the burden of legality rests on the new entrant, just that the burden is there when it requires an exception to someone else's already-legislated rights.
Not really. We have a common law system in the US, which is presumed to be flexible. If you want the kind of legal system where nothing exists unless it's spelled out, then you'd be happier living under a civil law system, such as that found in , say, France, or in most Latin American countries. In a common law system, you shouldn't necessarily need to rewrite the law for every new thing that comes down the pipe; in other words, just because you have a new technical way of sharing content, you're not exempted from the moral obligation not to do so without permission (as spelled out in existing law).
Now most objections to the copyright regime, including my own, are with the spirit of the law. I don't think it's right that copyright protection should extend to a work for an entire lifetime after the death of the author, or for longer than the typical human lifespan. Nor do I think it should be extendable retroactively. I'd prefer to see copyright terms similar to patent ones, of 20 or 30 years. That requires making pretty low-level changes in the law, which is a difficult and tedious process involving a great deal of opposition - which sucks. On the other hand, I don't think it'as acceptable to a) infringe freely because you think it's the morally superior course - whether you agree or not, people who choose to rely on the law as it is currently written to manage their assets are entitled to do so, or b) try to circumvent the spirit of the law by reaching for ever-more obscure technicalities - 'the law doesn't explicitly prohibit laser-light transmission through water, so if I spray my DVDs before ripping them I'm not breaking the law!'
Of course, this makes for a more restrictive world in the legal sense, because it's not that easy to get laws changed when there are powerful economic interests aligned against one. However, subversion of the law by technical means is basically trickery, and my experience is that that either leads to harsher laws or ends in absurdities. We've seen what happens with harsher laws - because of indifference and intransigence on the part of the internet community, we've ended up with monstrosities such as the DMCA, with its wildly excessive penalties for sharing media, which are designed to offset the low probability of enforcement (employing an economic concept known as an indifference curve, which has a sound theoretical foundation but depends on people being rational utility maximizers...which they're not, most of the time). As for absurdity, you get things like eruvs, in which Jewish Rabbis get around ancient religious prohibitions on activity during the Sabbath by redefining the entire local neighborhood as a single dwelling place, which involves setting up a corporation to own a loaf of bread and paying people to walk around once a week to ensure that all bridges and other infrastructure are still standing (see http://www.jweekly.com/article/full/28452/wire-to-wire/ for a full explanation).
If we want to really remedy the copyright situation, the best way forward is not to invent ever more obscure and devious ways to transmit files, but to automate and smooth the process of granting and administering copyrights. There is no reason that a copyright holder cannot waive some rights voluntarily, which includes partial waiver: I could paint a picture and specify that it is copyrighted until today's date in 2017, at which point it enters the public domain, say, or offer any number of creative licensing terms. The problem is licensing is that it's tedious to read and administer unless you're a lawyer, which is why the Creative Commons thing has taken off so well. Now if we automate that, there's no reason that we couldn't see shortened copyright terms emerge voluntarily as market equilibria; the law would still offer long copyright terms by default, but in a world of automated licensing such maximal terms would correspond to an excessively high price, and demand would flow towards competing products with more favorable terms. If this can be demonstrated to yield more lawful economic activity than copyright maximalism, then it's more likely to be formalized in law and provide copyright licensees with more rights than they currently enjoy.
We are now getting misleading Techdirt stories secondhand through Slashdot. It's interesting to see how far this game of telephone might go.
The "former copyright boss" is saying nothing of the sort. Here's what's actually happening:
Aereo is a company that streams NY broadcast TV over the Internet, capturing the broadcast signals and proxying them over IP to users. They are, unsurprisingly, being sued by every NYC television company, including PBS, because their product repackages broadcast TV in a product that lets users skip ads by default.
As I understand it, the suit is early days. But as is typical in cases like this, the content producers moved for a preliminary injunction to shut Aereo down while the case runs. The trial court refused, and so the content producers appealed.
Ralph Oman, who stopped working for the government before the dawn of the commercial Internet, filed an amicus in the content industry's appeals request to impose an injunction on Aereo.
Techdirt read Oman's amicus and reported sentences in the brief taken out of context. Techdirt's reading of Oman's amicus doesn't even make sense; the courts dealing with this case have no ability to create a "guilty until proven innocent" standard, nor can they require that technology produces consult Congress before launching products.
Oman was making an inside baseball argument to the court hearing the case. One element that recurs in all complex policy cases: how do judges resolve the (often contrary) forces of precedent, Constitutional principle, and the statutes enacted by legislatures. What Oman is arguing is not that the judge should apply some new restrictive rule on technology; rather, he's arguing that should the judge refuse an injunction on such a clear-cut case (his sentiment, not mine), that judge would in effect be creating a new policy of exempting technology companies from vicarious liability out of whole cloth, ignoring both precedent (thus his citation to a case where copy shop owners had been held liable for misuse of their property) and statute.
Obviously, Oman is a copyright hawk. I'm "conservative" as copyright goes, and even I don't think Oman is making a strong argument. This is obviously a very "leftist" forum, but that doesn't free you to make up entirely new and ridiculous arguments and stuff them into some random guy's mouth to create a straw man.
Finally, as straw men go, this is a pretty feeble one. This guy doesn't matter at all. He stopped managing copyright policy before the advent of CU-SeeMe.
The problem quote appears to be this: "Commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability. That is what Congress intended."
Perhaps I should note that vicarious liability[1] was invented by the courts, so worrying about whether or not they are creating new policy here seems a bit ironic.
The problem quote is taken out of context. Oman is saying that vendors should be required to convince Congress to amend copyright statutes if they expect the courts to defer to them in copyright cases. He is specifically not suggesting that vendors should petition Congress for permission to launch new products. What he's saying is that if your new product harms someone else's rights, the statutes that protect those rights apply. This seems like common sense.
Vicarious liability is a basic principle of common law. It was not "invented by the courts". You can be vicariously liable for all sorts of things, not just copyright infringement. People mix this up because they've only heard of vicarious liability in terms of copyright infringement, and then in the context of famous court cases.
You already supplied the context, so I thought I'd put the quote in there with it.
It's hard for me to say that common law was not invented by the courts, given that it derives from a lot of old court decisions: http://en.wikipedia.org/wiki/Common_law
Though it's fair to point out that congress did enact laws to codify the parts of it we wanted. That said, one of the few surviving bits is copyright-related (the "hot news" doctrine):
"We are now getting misleading Techdirt stories secondhand through Slashdot. It's interesting to see how far this game of telephone might go."
You know when I was watching President Obama's cover of the hit single "Call me maybe" [1] I was thinking the same thing.
Kidding aside though, the two things that the Youtube spoof and this have in common are taking snippets of actual "stuff" and mashing them together into something that the person making the mashup finds useful/amusing/entertaining. As HN and Reddit and slashdot before them seep into the journalistic consciousness there are pretty clear efforts to craft a message based on selective sampling. By drilling into the sources for all the clips (unnecessary of course but bear with me) used to compose the 'call me maybe' video its clear that the President never set out to make this video or even knew the lyrics (probably does now though :-) and this slashdot article appears to be a lesser instance of the same effect. Pull a few bits out of context, wrap them together into a choice sounding narrative and blam! you've got a "story."
So to answer your question the 'telephone' you mention is simply 'spin doctoring' (to use the 20th century vernacular) and it will continue as long as people make long enough sound bytes in their communication that they can be re-purposed for spin without setting off too many alarms in the readership.
So are you railing against the nature of humans? I mean you're not the 'Wake UP! sheeple' type generally, and you're contribution here (and presumably elsewhere) is clearly appreciated, so you are taking action on your concerns (which is great and way ahead of a number of others).
Patrick rightfully called me out the other day for creating out of whole cloth this 'other' which could be held up and criticized. Is that what you are doing by saying "... we are O.K. with this,"? Who are the 'we' in that context, I don't like it, you don't like it, so it isn't you and I but is this group of 'others' some great uncritical mass of readers? And then to go one step deeper are you railing against, 'their' agenda or this technique of spinning?
"Pandering to the crowd", "Preaching to the choir", and other colloquialisms for providing positive feedback on a system of beliefs is as old as humans. Maybe older. I suspect its in our nature to have self doubt and to seek out re-assurance of our beliefs. It takes practice and introspection to catch yourself being 'sold' rather than 'educated.' For some people that effort doesn't pay sufficient dividends to invest the effort.
I find these human driven belief systems to be some of the most intriguing from a systems analysis point of view. I feel compassion for folks who are unwitting participants, and I feel anger towards folks who manipulate them to their own advantage, and admiration for folks who manipulate them for the greater good of the community.
You're chasing this pointer maybe a few links farther than I intended. I'm just saying that it's annoying that message board threads are comfortable ignoring the dishonesty of sources like Techdirt and Torrentfreak, so long as those sources are whipping up rageviews from people who vocally support copyright infringement.
It might be useful to have the full story behind Aereo. If I recall correctly, they are trying to serve as an Antenna outsourcing service of sorts - you pay them to house your antenna and they let you watch TV from anywhere you have an internet connection.
From a consumer's point of view, seems very reasonable and convenient. A Dropbox for public TV of sorts.
That is one way to look at Aereo; the other way to look at it is that unlike a DVR, which is a gadget that consumers buy and use to enhance the way they consume broadcast signals, Aereo completely repackages the broadcast itself, copies the content, and delivers it in a new form that Aereo can profit from but that the content producers can't.
I tend more towards your perspective, for whatever it's worth.
That is basically it. Aereo is not doing any one thing you could not do yourself, but the conglomeration is a little gray.
As an admittedly poor analogy, the police can follow you around without a warrant. They can't, however, slap a GPS tracker on everybody's car and follow ten million people around simultaneously. The law is interpreted by people, and they consider things like scale, scope, automation, intent, etc.
That's a very interesting detail (sorry taking discussion a bit off track), but as UAV technology compresses and shifts to commodity scale, Police could potentially have a robot "follow" you around without warrant. It would seem that the original intent of the provision limiting surveillance gets circumvented.
The principal that prevents the police from attaching GPS devices to your car has less to do with the scope of surveillance and more to do with the fact that the police have to violate your personal property to accomplish it.
I think some expansion of this statement is in order. As far as settled SCOTUS cases go, the only reason why police need a warrant to attach a GPS to your car is because they must "sieze" the car (for however brief a time) in order to attach the device. As you alude to, it has nothing to do with the surveillance itself. However this is far from a settled issue. At least 4 out of the 9 SCOTUS justices support a new Fourth Amendment theory called the "mosaic theory", introduced by Alito in US v. Jones (2012). Under this theory, courts would evaluate the actions by government in aggregate to determine if the actions constituted a search. Under such a doctrine, 24 hour GPS surveillance on public roadways may well be illegal without a warrant. This theory has been criticized by some academics as too difficult of an analysis for the courts to handle. Yet it does show that the justices are indeed considering the scope of surveillance and some of them are trying to figure out a way to limit the scope using Fourth Amendment analysis. Alito in particular seems worried about it and he has found support for at least some of his ideas from Ginsburg, Breyer, Kagan, and Sotomayor
Makes you wonder if the court would have upheld the police GPS tracking if the guy had just been parked on the street instead of his driveway the night they bugged his car.
I don't subscribe to cable TV (Roku or Mac Mini connected TVs works 4 me) and the antenna service I have in my area is very lacking.
I am excited about Aereo as it is a service I would subscribe to, as well it or something like it will force copyright to offer live local channels via the web.
Excellent, the iTunes store is illegal, and the RIAA is a conspiracy with Apple to foist illegal technology upon citizens, lets bring RICO charges against the record execs. Someone who runs a record store somewhere must have committed a crime at some point, so lets run them through the presumption of guilt via a RICO charge. Lets also make sure they aren't using criminal funds to fund their defence and freeze their accounts.
Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established. That is especially so if that technology poses grave dangers to the exclusive rights that Congress has given copyright owners. Commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability. That is what Congress intended.
Translation: "The courts are in business to protect us, not you". This, broadly, has been their position from the beginning. It's ridiculous, sure, but predictable.