Copyrighted material containing trademarks does enter the public domain, and in so doing, can wreak havoc upon the trademarks. Dastar v. 20th Century Fox is a good case for this, and the gist is that trademarks are not a substitute for copyright. Then read it in conjunction with Kellogg v. National Biscuit, which rendered the SHREDDED WHEAT trademark generic once the patent expired.

This is why Disney cares so much about copyrights; if Steamboat Willie enters the public domain, anyone can create films using the original version of Mickey Mouse (later changes to the character would still be protected so long as the works which introduced them were). And that means that Mickey Mouse ceases to function as a trademark in certain regards, because the public can no longer rely on his presence as a source identifier for some classes of work.

It's like Peter Pan in the US. The character is in the public domain, and anyone can make creative works using him. There are some trademarks for bus services and peanut butter, but I don't think it would hold up for merchandise which is closely associated with the creative work. (E.g. dolls of the characters from the story) Disney would not be satisfied with little more than Mickey Mouse ice cream bars.

That's because it's gotten too easy, with color coded, keyed cables of with widely varying connector shapes.

I remember when everything was unkeyed, unmarked ribbon cables, both inside and out, as far as the eye could see. And you had to plug unkeyed ICs by hand into their sockets.

First, the public performance / private performance dichotomy only matters for certain types of works: literary, musical, dramatic, choreographic, pantomime, motion picture and other audiovisual works, and in the case of digital audio transmissions only, sound recordings. (That's why analog radio stations don't have to pay royalties to recording artists to play records: no performance right. There is a right for the underlying song, though, so they do pay songwriters)

Second, expense and impracticality. If Aereo wanted to branch out into something like Netflix, where it rented videos on demand, it would have to contend with Redd Horne. The Redd Horne case involved a video rental store that not only rented videotapes without authorization (which is not infringing if the copies are eligible for First Sale), but also provided in-store viewing areas, and TV sets, for people to watch the movies with. Patrons using the viewing areas didn't handle the tape themselves; the store clerk had control of the tape and the VCR. Essentially, they were operating a small, on-demand movie theater, and this was found to be infringing because they re-used the same copy of the tape and the tape was never even under the dominion of the patron, but at all times under the dominion of the store.

More recently, this cropped up with a company called Zediva, which offered to rent a DVD, and a player to a customer, and to stream the video over the Internet. Based on Redd Horne, they got shut down, because again, they reused the same copies that they showed people, and they retained control over the copies.

For Aereo to avoid these precedents, they'd need to have one lawfully made copy of each video per customer, and never share them between customers. Dealing with all the discs would require more physical space, more equipment, more staff, and would still be risky due to the discs remaining on Aereo's premises. They can't copy the discs. And it would not be particularly inexpensive for the customers who could just go get them from Amazon or wherever. The cost and impracticality of it is what makes it unlikely.

Most other sorts of works aren't transmitted freely from hither and yon. A hardcopy book would be even worse than a DVD. Ebooks aren't broadcast for free like OTA TV. Web pages are more easily viewed in the user's own web browser directly, rather than paying Aereo a monthly fee to be a middleman for no good reason.

So I don't think it's very likely that the Aereo model will spread beyond free, OTA TV.

No, they're allowing anyone among the general public to make their own individualized recordings of OTA TV signals. Once the recording is made, it's not performed publicly, and it's not shared around.

Aereo doesn't. It's separate performances per user, which maintains their private nature. Public performances would require that multiple users experienced the same performance, or at least shared the same copies which were being used to make the performance. That's what distinguishes it from a regular broadcaster (which uses a master performance) or a Redd Horne style video on demand service. (which re-used copies and was found liable for public performance)

The argument against it basically hinges on ignoring the fact that copyright only protects public performances, and expanding the right to all performances, because private persons viewed in aggregate, even though otherwise not connected to each other, comprise the public. And also, by ignoring the individualized nature of the copies, and instead viewing it as sharing copies because they all stem from a master source.

OTOH, if you had 100 TVs, and 100 TV antennas, you could rent those TVs and antennas to private persons to set up and use in their own homes for the duration of the rental agreement. This is actually a longstanding practice. In fact, my paternal grandparents didn't own a TV for a long time, but did rent one in 1969 in order to watch the moon landing. The parallels to Aereo's service are pretty strong: users get exclusive access to an antenna, a video file, and a sufficient portion of computing and telecommunications resources in order to get the video stream.

Distributing a copy of a work is protected by copyright. However, there is a big exception in first sale; if the copy was lawfully made, and has been conveyed by the copyright holder or an authorized person, the copyright holder cannot control future distribution of the work by means of his copyright (subject to a few exceptions not relevant here).

So if you give me a copy of a book you bought from the bookstore, that's ok. You don't need authorization. You can even do it if you're specifically ordered not to by the copyright holder; he is impotent in the matter.

And there's no such thing as private use, really. Copyright doesn't prohibit public use, or private use, or any sort of use-use, really. Reproduction, distribution, making derivatives, public performance, public display are basically all that's prohibited. So long as your use doesn't involve any of those, the copyright is inapplicable. And if it does, there may yet be an applicable exception.

Super, let's have it. Of course, you might still want to look at the previously linked-to Second Circuit opinion, in case the court already looked at that precedent.

The public performance right only covers public performances. The distribution right, like the honey badger, don't care: it applies to both public and private distribution. First sale and fair use, likewise, are unaffected.

Copyright is about more than just fair use, you know.

It may help to think of copyright by means of a Venn diagram. It's like a subset that is, itself, full of sub-subsets that compromise holes in what the subset contains.

The largest set is the public domain. Anything in the public domain can be used freely, in any way, so far as copyright is concerned. (Because we're talking about copyright, and not, say, personal property, note that a copy of a work can still be owned and off-limits even though the creative work embodied in that copy is not protected. For example, the Mona Lisa is in the public domain, but the actual wooden painting made by Da Vinci is heavily guarded. Copyright might not give anyone the right to stop you from making a copy of the Mona Lisa, but the Louvre doesn't have to let you take a photograph of it.)

Works that are copyrighted fall partially into the subset of copyright. Partially, not wholly, because copyright only applies to certain types of action with regard to a work. For example, making a new copy of a work by reproducing it is one of the exclusive rights of copyright. But using a book (which is a copy of a work) to prop up an uneven bedframe is not an infringement of copyright, because the law does not grant copyright holders an exclusive right of 'propping-up.' Likewise, some kinds of works are not copyrightable. In the US, from 1790 on, only books and maps could be copyrighted. Only when the law was amended in 1802 were some engravings copyrightable. In 1831, all engravings, and also musical compositions; 1856, dramatic works; 1865, photographs; 1870, paintings, sculptures, drawings, and models and designs of works of fine art; 1912, motion pictures qua motion pictures (previously they were claimed as collections of photographs); 1971, sound recordings; 1976, pantomime and choreography as themselves, as opposed to being dramatic works; 1990, architecture. Anything not on the list of protected types of works is in the public domain. (Software, in case you're wondering, is treated as a literary work, like a book, but doesn't yet have its own category) There are a few other limits on what is copyrightable, but they're not terribly important for our purposes.

Of the list of enumerated rights which compromise copyright, and which is short in comparison to the list of all rights concerning those works and their copies, as applied to those works which are eligible for copyright, which is less than the totality of all works, there are still some subsets which further limit copyright protection.

Fair use is one of them -- any otherwise infringing use, which is fair, is not infringing. That's a fairly good-sized hole in the already swiss-cheesed set of copyright. First sale is another big one -- the right of the copyright holder to control the distribution of copies is almost entirely obliterated once the copyright holder has sold the copies in question. There are some exceptions to that exception, and some exceptions to those exceptions to the exception, but it's still shrinking copyright. Another one you might enjoy for software is that if a person owns a copy of a program, he can copy it and modify it in order to make it work, without needing permission. Likewise, he can make backups without permission. So really, so far as copyright goes, people in the US only need to agree to the GPL to copy a work if they're going beyond the statutory exception that keeps copyright from stopping them making certain copies.

There are exceptions like this throughout the Copyright Act. They can be broad, they can be narrow, they can be subject to various conditions and exceptions themselves. But the point remains that copyright is an all-encompassing, all-covering blanket. It's a like a piece of swiss cheese, full of holes.

Aereo is going through one of these holes -- a fairly big one, since copyright doesn't even apply to private performances and no more specific exception is needed; it's like they were in the propping-up business I mentioned earlier. It doesn't imperil the viability of the GPL. If the next version of the GPL tries to assert that people must agree to it in order to do things which copyright doesn't prohibit, then the general thrust of Aereo that everything which is not forbidden is allowed (one of the foundations of our entire system of law, btw) might matter. But I don't think the GPL is likely to go so badly wrong anytime soon.

Perhaps instead of strongly asserting a position ("it's copyright infringement, plain and simple" ... " it could effectively spell the end of open source works" ... "I sincerely hope the supreme court slaps this one down.") which doesn't seem to have been based on a lot of analysis ("I don't know how unlikely what I fear if this is upheld might actually happen is, to be honest... but it's the first thing that *I* thought of"), you should refrain from staking out a position until you've really looked into it.

Hell, you could even try asking RMS, who is pretty knowledgable about the GPL, as to whether a win by Aereo would imperil FLOSS (or whatever people are calling it now, it's all People's Front of Judea to me).

Performing a work privately isn't infringing, because the exclusive right of performance under section 106 only applies to public performances. However, unlike the GPL, this does not 'infect' the work or any instance of the work. Copyright applies to the work as much as it ever did. Therefore, if you privately perform a work, by, for example, watching it on TV, you cannot make a copy of it, distribute copies of it, or make derivative works based upon it. There might be a fair use exception to certain acts depending on the circumstances (e.g. copying a work by recording it on a DVR, whether this is done at home or remotely over a network), but fair use can apply to any kind of use to any kind of work, so long as the use is fair. There's nothing special that a holding against Aereo would do vis a vis fair use and its applicability to open source software.

You're worried about things that have no chance of happening, possibly due to ignorance of US copyright law. It's not just making a mountain out of a molehill. You're making a mountain out of sheer imagination; there's no molehill or any other thing to enlarge in the first place.

How the law is worded is crucially important. Otherwise, why bother?

The wording at issue is:

Aereo isn't performing at a place at all, so part one is out. This is aimed more at, for example, a bar that has a TV set, or a movie theater.

For part 2, their transmission isn't to the public, because they don't make one master transmission. Instead they make individualized transmissions to each customer, each a separate performance, from each customer's separate antenna or each customer's separate DVR'ed copy made from that separate antenna. The nature of the transmission recipient is important, because to ignore it would be to ignore the plain language of the statute that says "to transmit ... to the public." The nature of the transmission is important, because to ignore that would be to ignore the plain language of the statute that says "a performance ... of the work," which isn't the same thing as agglutinating all performances.

Congress is of course free to change the law, if the courts have gotten it wrong. But the letter of the law controls, with intent only being instructive in the case of the letter being unclear. It's not particularly unclear here, it's just something that people hadn't really thought of before.

I sincerely hope the Supreme Court does a good job of interpreting the law. I don't want a particular side to win or lose, I want the law to be upheld, whatever it is. It's not for the Court to decide this as a matter of policy. Your comment betrays your partisanship, but you really ought to take that to Congress instead.

And now your disinterest in reading the opinion becomes clear; you've made up your mind and don't care about honestly looking at counter arguments and possibly revising your opinion.

That's not the argument.

The argument is that in the US, copyright only prohibits certain things (most of which, you can find at 17 USC 106). The one which is relevant for Aereo is that public performances are protected by copyright, but private performances are not. By breaking apart their infrastructure as they have, Aereo claims that it is engaged in the business of private performances (because each user has their own private antenna, their own private copies of shows, all sent to them alone, not shared with anyone by Aereo).

This really has no effect on the GPL one way or another, as there are separate exclusive rights under section 106 for making and distributing copies, and making derivatives. Those are the things that tend to matter for GPL purposes.

Go read the previously linked-to opinion, please. Your misconceptions are not helping at all.

I am intrigued by your idea of being paid to watch the Superbowl, and would like to learn more.

As I understand it, they're not required to carry them and pay. The broadcaster has a choice between required carriage for free, or optional carriage for pay. But non-local channels cannot be substituted for local ones; thus if a cable company won't pay a local broadcaster which is a network affiliate, and which demands to be paid, that network drops off of cable. We saw this earlier in the year with Time Warner Cable and CBS (and its affiliates).

How then, do you explain three separate federal courts finding that Aereo is likely not infringing? If it was plain and simple, it seems unlikely that they'd miss it.

Take a look at the opinion from the Second Circuit that came out in the spring.You'll see that what it hinges on is not whether there was a transmission, but to whom Aereo's transmission was aimed.

Now they do, but they didn't originally. Cable TV appeared around 1950 or a little earlier. The law that obligates cable providers to pay broadcasters to carry their signal (unless the broadcaster demands to be carried, in which case it's free) is from 1992. If we were to wait until 2055 before making Aereo pay broadcasters, I bet Aereo would be okay with that.

There is no common law federal copyright in the US for published works. This was established long, long ago. Copyright on published works can only arise through federal law, and statutes aren't all that flexible.

I'd agree that there aren't loopholes, but only in the sense that there are almost never loopholes in any law; what people perceive as loopholes are usually disconnects between their mental models of what the law ought to do and how it ought to work, and the reality of what the law actually does and how it really works. The things called loopholes are often deliberately designed features, and not just to help out clever bad actors. (Though there are some of those)

And the only Lemon test I know of is from Lemon v. Kurtzman, 403 U.S. 602 (1971). It's a First Amendment establishment clause case which found that Pennsylvania's subsidies to secular teachers in religious schools violated the First Amendment. The test is basically as follows:

In order to avoid infringing on the First Amendment, the government must act for secular purposes, must not have the primary effect of either helping or harming religion, and must not become entangled in religious matters.

I'll be damned if I see how this is helpful in a copyright case, but maybe you'd like to explain it to us.

You've proven this point very well, thanks.

Why not? Merely because someone spends money and effort to do something doesn't mean that they're entitled to absolute control over it.

If I put a lot of money and effort into improving my house and the lot it sits on, that increases the value of neighboring properties to some extent. But I'm not entitled to a cut, when my neighbor sells his house for more than he would've gotten, had I not done anything.

Hell, you might as well say that the school in the state I grew up ought to get a share of the money I make now, far away in a different state, because I wouldn't have my current job had I never learned to read and write.

Things just don't work this way.

Not really. McCarthy didn't have evidence or even a reasonable basis for making his claims. Playing the lottery and winning doesn't mean you can see into the future or are a whiz with statistics; claiming that there are communists in the State Department didn't mean he had even the tiniest bit of intelligence.

Plus, if he did know, it would've been grossly irresponsible to say so. Exposing known enemy spies and agents just means that they'll be replaced by others who you'll have to find all over again. The better tactic is to in some way turn the ones you know about so that you control what information they send back to your enemy.

And 'rife' is somewhat of an overstatement.

Frankly, McCarthy was a drunk bully. We'd all have been better off if he'd never been in politics at all. It's entirely proper to despise him and it's nice to see that so many do.