I’ve been too busy with work to update the comic these past couple months, but I used the downtime to further rethink the look of the comic. Anyway, today Wilkie learns that ineluctable truth of practice—that no matter what kind of law you’d like to practice, you’re always working for the guys with the money.
Back from PAX Prime with photos! I was only able to make it on Monday, so I don’t have a lot of pictures. Still a fun time. Very different from what I’m used to—the massive industry displays really turn the Washington State Convention Center into something like an alien landscape. It’s tiring, but it’s fun, and I got to meet cool people like Christine Love and Jake Kaufman. Maybe I’ll see you there next year.
As usual, pictures are on Flickr.
And the Judicial Quote of the Day goes to…
Judge Wade McCree of Michigan! You might know him from his removal from office for hooking up with the complaining witness in a felony trial he was conducting. Here’s an example of his finely honed courtship skills in action:
Girl, every man in the damn courtroom was peeping your upscale game … C’mon, U’r talking about the “docket from hell,” filled w/tatted up, overweight, half-ass English speaking, gap tooth skank hoes … and then you walk in.
And the runner-up is… Judge McCree, again.
Oh yeah, I text from the bench. After last nite, its all I can do not 2 jerk off ‘under’ the bench:-). U know U have a magnificent pair of legs!
Or maybe it’s Judge McCree, responding to allegations that he sent his own bailiff a half-naked picture of himself:
Hot dog, yep that’s me. I’ve got no shame in my game. I ain’t talking to nobody else’s wife. You can almost get that here and now. I’ve sent that out to other women. There’s nothing nude about it. I’m in no more clothes than I’ll be at the Y this afternoon when I swim my mile.
Actually, I changed my mind. The quote of the day goes to the Judicial Tenure Commission master who recommended McCree’s removal:
In final summary there is Shame in the McCree game: shame to the good name of McCree and shame brought upon the judiciary of the State of Michigan.
You know what, just read the Sixth Circuit opinion in the civil suit against Judge McCree, the whole thing is too good. It also contains some interesting discussion of judicial immunity.
Of Streamers and Storage: ABC v. Aereo, Inc.
In a previous blog post, I wrote about the Supreme Court case ABC v. Aereo, Inc.—a case about whether rebroadcasting TV signals over an Internet stream violates copyright. Back then, I discussed two key questions in this case: what is a “performance,” and who is the “public”? In a 6-3 decision today, ABC v. Aereo, Inc., No. 13-461 (Jun. 25, 2014) (slip opinion), the Court answered both questions in a way that may be very problematic for tech companies moving forward. Read on to find out more.
Just to refresh your memory, Aereo is a service that captures TV broadcasts using one of many tiny antennas, saves those broadcasts as subscriber-specific files, and then streams those files to the end user’s computer, all at the control and direction of the subscriber. The question is whether Aereo “publicly performed” those TV shows in contravention of 17 U.S.C. § 106(4). 17 U.S.C. § 101 tells us that you “perform” a work when you “show its images in any sequence or  make the sounds accompanying it audible.” If that definition sounds far-reaching to you, that’s the point:
Under this new language, both the broadcaster and the viewer of a television program “perform,” because they both show the program’s images and make audible the program’s sounds. See H.R. Rep., at 63 (“[A] broadcasting network is performing when it transmits [a singer’s performance of a song] … and any individual is performing whenever he or she … communicates the performance by turning on a receiving set”).
Aereo, slip op. at *7 (emphasis in original). As the opinion explains at some length, this language is purposely broad because Congress wrote it specifically to overrule Supreme Court caselaw that said it’s not a performance if you’re just repeating an existing signal.* Aereo, slip op. at *4-8. So under the statute, you are “performing” my work when you reblog this post. You are “performing” when you play some CDs at your food truck; you are “performing” when you show your friends a funny video on YouTube; you are “performing” when you sing your significant other a love song (or Paul Simon’s “50 Ways To Leave Your Lover,” for that matter); you are “performing” when you print out every frame of a movie and stick them in a big binder; and here, Aereo “performed” something. That much, the whole Court agrees with. See Aereo, slip op. at *8-9, slip op. at 5-6 (Scalia, J., dissenting).**
But what exactly did Aereo “perform” here, and to whom? Last time, I talked about the difference between “performing” a work and “performing” a single copy of a work. I noted that under existing caselaw, you can’t show a single VHS copy of a movie to any Tom, Dick, and Harry who walks in your door, because that’s performing to the “public.” Columbia Pictures, Inc. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984). But showing a single electronic copy of a show to a single person is fine—meaning that showing many copies of the same show to many individuals is okay. Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (hereinafter Cablevision). In other words, the plural of “private performance” is not “public performance.” Until today’s decision, anyway.
Today’s opinion does not expressly overrule Cablevision,*** but it does gut Cablevision of most of its precedential value. In the majority’s view, you are “publicly performing” when you “communicate the same contemporaneously perceptible images and sounds” to multiple members of the public, “regardless of the number of discrete communications” you use to do it. Aereo, slip op. at *14. That is, it doesn’t matter whether your audience is sharing the same copy of the copyrighted work, or whether each member of the audience gets their own individualized copy: such “technological differences” are invisible to viewers, they have no bearing on “Aereo’s commercial objectives,” and they make no difference “[i]n terms of the [Copyright] Act’s purposes.” Aereo, slip op. at *12. If it walks like a duck, swims like a duck, and quacks like a duck, it must be a duck—or a public performance, for that matter. If you think that test is vague and unpredictable, well, you’re in good company. See generally Aereo, slip op. (Scalia, J., dissenting).
That just leaves one question—who’s a member of the “public”? The Copyright Act defines the “public” with reference to “a substantial number of persons outside of a normal circle of a family and its social acquaintances.” 17 U.S.C. § 101. This leads the Court to conclude that “’the public’ consists of a large group of people outside of a family and friends.” Aereo, slip op. at *14-15. Reasonable enough, if not terribly specific.
But that’s not all there is to it. In my last post, I noted how Justice Breyer was concerned about potentially sweeping up storage services like Dropbox in the Court’s decision. So now that Breyer has the majority, how does he keep the collateral damage down? By playing with the definition of the word “public.” Seizing on Paul Clement’s car dealer/valet parking analogy from oral argument****, Justice Breyer tells us that whether people are members of “the public” “depends upon their relationship to the underlying work.” Aereo, slip op. at *15. So if you’re just sending users copies of works that they already own, there’s no “public performance,” no matter how many copies you send. For example, when you buy a song from Amazon MP3, it gets saved to the Amazon Cloud and you can download it, right?***** Under the Court’s rule, Amazon does not “publicly perform” the song even if 50,000 total strangers purchase and download the same song from Amazon Cloud. When all you do is give people what’s already theirs, you’re not dealing with the “public,” and so Dropbox and the like aren’t affected by today’s decision. Right?
Right—if you assume that Dropbox users only use it to store things they own. That is a naïve assumption indeed, though perhaps not surprising. The point is, nothing in the Court’s rule seems to help Dropbox in the situation where, say, people are keeping their pirated BD rips of Air Bud 2 on Dropbox. When Dropbox users retrieve their pirated copies of Air Bud 2 from the cloud, Dropbox is “communicat[ing] the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other,” and furthermore, who don’t own Air Bud 2. Aereo, slip op. at *14. There you have your public performance, and now Dropbox is in trouble.
Realistically, would such a situation ever end up in a courtroom? Perhaps not. But it’s just one example of the uncertainty that the Aereo court created today. The Court tries to play off today’s decision as a narrow holding that will leave room for technological innovation. But when you’re a small and vulnerable innovator, uncertainty itself can be a legal bar to you. The only thing today’s decision tells us for sure is that troubled times lie ahead for copyright law.
* Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968), abrogated by statute, Copyright Act of 1976; Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394 (1974), abrogated by statute, Copyright Act of 1976.
** Scalia’s well-reasoned dissent (god, talk about your phrases I never thought I’d write) also notes that Aereo cannot have “performed” because it was the user, not Aereo, that chose what data to transmit—in other words, you only “perform” if you push the data, not if the user pulls it from your systems. Aereo, slip op. at *6-7 (Scalia, J., dissenting). I don’t discuss this argument here because Scalia articulates it quite well on his own.
*** Indeed, Justice Breyer throws in some token assurances that their opinion doesn’t reach remote-storage DVR services, such as Cablevision. Aereo, slip op. at *16-17. These assurances are not convincing for reasons I explain later in this post.
**** “And I do think that in all sorts of places, including the real world, there’s a fundamental difference between a service that allows—that provides new content to all sorts of end-users, essentially any paying stranger, and a service that provides a locker, a storage service. And I think if you want a real world analogy off the Internet, I think it’s the basic decision—the difference between a car dealer and a valet parking service.” Transcript of Oral Argument at 12-13, ABC v. Aereo, No. 13-461.
***** I include this explanation for the benefit of those of you who have never legally acquired a song.
Cute Lawyers #56: The Competition is Over
Sorry this coming is coming to you so late! I’ve been very busy with work… and I’m experimenting with bringing the comic into full color. I’m still trying to reach a balance between making the comic look pretty and updating more than bi-monthly, so stay tuned, as the look may continue to change!