Shakespeare had alerady recommended killing all the lawyers hundreds of years earlier, and who could argue with the bard?
I say, we let them go!
Shakespeare had alerady recommended killing all the lawyers hundreds of years earlier, and who could argue with the bard?
I say, we let them go!
So basically, if they just shift from LIVE to a TIME DELAYED model, they could go right on transmitting and not be considered "performing" under the current act.
As J. Scalia points out, the 'standard' the Court has chosen is unclear. Maybe that would be legal, maybe it wouldn't be. We'll never know until either 1) Congress amends the law to be clear about that; 2) Someone tries it and the Court reverses this opinion in a useful way; or 3) Someone tries it and the Court rules squarely on that in light of this opinion.
One thing is for sure: Only someone with lots of resources and a lot of daring will even attempt to find out by actually trying it.
Yes. Sorry about the fucked up apostrophes, quotation marks, etc. I just copied and pasted from the opinion without previewing the post, like everyone does. I can't believe it's 2014 and this sort of thing still isn't automatically handled properly.
This case boiled down to one major issue: Whether the allegedly infringing conduct in this case was engaged in by either Aereo, or by its users. Don't get hung up on the public performance v. private performance issue; it was really certain that if Aereo was liable, that the performance was public; if it were the users, it would be private.
J. Scalia's dissent does a good job of explaining the issue:
There are two types of liability for copyright infringement: direct and secondary. As its name suggests, the former applies when an actor personally engages in infringing conduct. Secondary liability, by contrast, is a means of holding defendants responsible for infringement by third parties, even when the defendants âoehave not themselves engaged in the infringing activity.â It applies when a defendant âoeintentionally induc[es] or encourag[es]â infringing acts by others or profits from such acts âoewhile declining to exer- cise a right to stop or limit [them].â
Most suits against equipment manufacturers and service providers involve secondary-liability claims. For example, when movie studios sued to block the sale of Sonyâ(TM)s Betamax videocassette recorder (VCR), they argued that Sony was liable because its customers were making unauthorized copies. Record labels and movie studios relied on a similar theory when they sued Grokster and StreamCast, two providers of peer-to-peer file-sharing software.
This suit, or rather the portion of it before us here, is fundamentally different. The Networks claim that Aereo directly infringes their public-performance right. Accordingly, the Networks must prove that Aereo âoeperform[s]â copyrighted works, Â106(4), when its subscribers log in, select a channel, and push the âoewatchâ button. That process undoubtedly results in a performance; the question is who does the performing. If Aereoâ(TM)s subscribers perform but Aereo does not, the claim necessarily fails.
The Networksâ(TM) claim is governed by a simple but profoundly important rule: A defendant may be held directly liable only if it has engaged in volitional conduct that violates the Act.
A comparison between copy shops and video-on-demand services illustrates the point. A copy shop rents out photocopiers on a per-use basis. One customer might copy his 10-year-oldâ(TM)s drawingsâ"a perfectly lawful thing to doâ" while another might duplicate a famous artistâ(TM)s copyrighted photographsâ"a use clearly prohibited by Â106(1). Either way, the customer chooses the content and activates the copying function; the photocopier does nothing except in response to the customerâ(TM)s commands. Because the shop plays no role in selecting the content, it cannot be held directly liable when a customer makes an infringing copy.
Video-on-demand services, like photocopiers, respond automatically to user input, but they differ in one crucial respect: They choose the content. When a user signs in to Netflix, for example, âoethousands of . . . movies [and] TV episodesâ carefully curated by Netflix are âoeavailable to watch instantly.â That selection and arrangement by the service provider constitutes a volitional act directed to specific copyrighted works and thus serves as a basis for direct liability.
The distinction between direct and secondary liability would collapse if there were not a clear rule for determining whether the defendant committed the infringing act. The volitional-conduct requirement supplies that rule; its purpose is not to excuse defendants from accountability, but to channel the claims against them into the correct analytical track. Thus, in the example given above, the fact that the copy shop does not choose the content simply means that its culpability will be assessed using secondary-liability rules rather than direct-liability rules.
So which is Aereo: the copy shop or the video-on-demand service? In truth, it is neither. Rather, it is akin to a copy shop that provides its patrons with a library card. Aereo offers access to an automated system consisting of routers, servers, transcoders, and dime-sized antennae. Like a photocopier or VCR, that system lies dormant until a subscriber activates it. When a subscriber selects a pro- gram, Aereoâ(TM)s system picks up the relevant broadcast signal, translates its audio and video components into digital data, stores the data in a user-specific file, and transmits that fileâ(TM)s contents to the subscriber via the Internetâ"at which point the subscriberâ(TM)s laptop, tablet, or other device displays the broadcast just as an ordinary television would.
The only question is whether those performances are the product of Aereoâ(TM)s volitional conduct.
They are not. Unlike video-on-demand services, Aereo does not provide a prearranged assortment of movies and television shows. Rather, it assigns each subscriber an antenna thatâ"like a library cardâ"can be used to obtain whatever broadcasts are freely available. Some of those broadcasts are copyrighted; others are in the public do- main. The key point is that subscribers call all the shots: Aereoâ(TM)s automated system does not relay any program, copyrighted or not, until a subscriber selects the program and tells Aereo to relay it. Aereoâ(TM)s operation of that system is a volitional act and a but-for cause of the resulting performances, but, as in the case of the copy shop, that degree of involvement is not enough for direct liability.
In sum, Aereo does not âoeperformâ for the sole and simple reason that it does not make the choice of content. And because Aereo does not perform, it cannot be held directly liable for infringing the Networksâ(TM) public-performance right.
However, that's not the decision that the Court reached. Instead, J. Scalia describes the Court's opinion as:
The Courtâ(TM)s conclusion that Aereo performs boils down to the following syllogism: (1) Congress amended the Act to overrule our decisions holding that cable systems do not perform when they retransmit over-the-air broadcasts;4 (2) Aereo looks a lot like a cable system; therefore (3) Aereo performs.
Making matters worse, the Court provides no criteria for determining when its cable-TV-lookalike rule applies. Must a defendant offer access to live television to qualify? If similarity to cable-television service is the measure, then the answer must be yes. But consider the implications of that answer: Aereo would be free to do exactly what it is doing right now so long as it built mandatory time shifting into its âoewatchâ function. Aereo would not be providing live television if it made subscribers wait to tune in until after a showâ(TM)s live broadcast ended. A subscriber could watch the 7 p.m. airing of a 1-hour program any time after 8 p.m. Assuming the Court does not intend to adopt such a do-nothing rule (though it very well may), there must be some other means of identifying who is and is not subject to its guilt-by-resemblance regime.
Two other criteria come to mind. One would cover any automated service that captures and stores live television broadcasts at a userâ(TM)s direction. That canâ(TM)t be right, since it is exactly what remote storage digital video recorders (RSâ"DVRs) do, and the Court insists that its âoelimited holdingâ does not decide the fate of those devices. The other potential benchmark is the one offered by the Gov- ernment: The cable-TV-lookalike rule embraces any entity that âoeoperates an integrated system, substantially dependent on physical equipment that is used in common by [its] subscribers.â The Court sensibly avoids that approach because it would sweep in Internet service providers and a host of other entities that quite obviously do not perform.
That leaves as the criterion of cable-TV-resemblance nothing but thâ(TM)olâ(TM) totality-of-the-circumstances test (which is not a test at all but merely assertion of an intent to perform test-free, ad hoc, case-by-case evaluation). It will take years, perhaps decades, to determine which automated systems now in existence are governed by the traditional volitional-conduct test and which get the Aereo treatment. (And automated systems now in contemplation will have to take their chances.)
The Court's opinion states that it doesn't have an effect beyond Aereo and Aereo-like services:
Aereo and many of its supporting amici argue that to apply the Transmit Clause to Aereoâ(TM)s conduct will impose copyright liability on other technologies, including new technologies, that Congress could not possibly have wanted to reach. We agree that Congress, while intending the Transmit Clause to apply broadly to cable companies and their equivalents, did not intend to discourage or to control the emergence or use of different kinds of technologies. But we do not believe that our limited holding today will have that effect.
For one thing, the history of cable broadcast transmis- sions that led to the enactment of the Transmit Clause informs our conclusion that Aereo âoeperform[s],â but it does not determine whether different kinds of providers in different contexts also âoeperform.â For another, an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work.
And we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content.
But, as J. Scalia points out:
The Court vows that its ruling will not affect cloud-storage providers and cable- television systems, but it cannot deliver on that promise given the imprecision of its result-driven rule.
It doesn't work to do this with a democratic government. We need a monarchy
Or perhaps a font of sage wisdom? You know, like a Council? Composed of wise people, you know, like one's Elders? Something any sentient species ought to be able to figure out. Speaking of which, I feel another press release coming on...
K'Breel, Speaker for the Council, addresses the publication of the new report thusly:
"WE HAVE TRIUMPHED! Our skilled operatives from the Division of Behavioral and Social Sciences and Propaganda; Planetary Research Council have successfully infiltrated the blueworlders' technological and informational systems. One notable document, Pathways to Exploration makes clear the disarray in which the blueworlders' long-term invasion plans lie, drawing on the history of meat-controlled spaceflight to justify future programs in organic space exploitation. Although the report promotes the invasion of our world as the horizon goal for the program, it takes into account funding levels necessary to maintain a robust tempo of execution, current research and exploration projects and the time/resources needed to continue them, and intertribal cooperation that would be required to further oppress the citizens of our fair red world."
"And its conclusion? Although the mechanized threat remains, and we salute those still fighting pitched battles with the two active land-based invaders, Pathways to Exploration makes it clear that it is not possible for the blueworlders' organic-based self-replicators to invade our world, at least not without a sustained commitment to funding at a higher level than their own tribal leaders are currently providing."
When an intern from the defense engineering board suggested that improving the capabilities of the blueworlders' EDL systems, radshielding, and propulsion and power systems were ultimately matters of engineering and not physics, and could ultimately be addressed if the tribals of the blue world ever get it into their oxygen-addled brains to work together to achieve a common goal (as, the intern suggested, the way any sentient species does), K'Breel had the intern's gelsacs addled by immersing them in a suitably-merciful quantity of liquid oxygen.
Thus spake K'Breel, Speaker for the Council of Elders, Committee on Native Spaceflight; Arenautics and Defense Engineering Board; Defense Studies Board; Division of Blueworlder Social and Physical Sciences; Committee on Gelsacular Statistics.
I kept thinking "I am the very model of a modern Major Perl Framework..."
I am the very model of a modern Major Perl Framework,
But here I am on Slashdot, trying harder from my job to shirk,
From HackerNews to 4chan there's no forum in which I won't lurk,
I am the very model of a modern Major Perl Framework!
I know some economists like Krugman disingenuously state that a government in control of its own currency printing presses can never default, but that's a lie. If these people bought the bonds in good faith and the government decides to pay them off with hyperinflated, worthless currency that they printed, then that's theft (at least morally speaking).
No, it's not theft. It's just the Super Chicken rule: they knew the job was dangerous when they took it.
Bond purchasers know that currencies may be debased, and that governments may even just default; happens all the time. But they gambled that the likelihood of getting a return on their investment was greater than of losing it, and that it was a better option than putting the money elsewhere. But there's no rock solid guarantee that absolutely cannot be broken.
Next you'll say that discharging debts in bankruptcy is immoral or something similarly stupid.
FUTHERMORE. The size of the universe is unknown. Furthermore: By present estimates, the universe is near uniformly "flat." That means, you go to the edge of the visible universe on one side, and you do *not* wrap around "the other side." Rather, there's more universe past what we can see. If the universe were infinite in all directions, it'd be completely consistent with known measurements. If the universe is infinite in all directions, we can absolutely count on there being intelligent life way, way out there.
Time to take stock. Go home with some office supplies.