How Copyright Has Driven Online Streaming Innovators Insane

from the insanity-defense dept

Fri, Aug 31st 2012 10:01am — Mike Masnick

A little over four years ago, we wrote about the Second Circuit appeals court's ruling in the case over the legality of Cablevision's remote DVR. As we said at the time, the court came to the right result -- the remote DVR was perfectly legal -- but had to twist itself into all sorts of crazy contortions to make that argument fit within the confines of copyright law. That's because of the nature of copyright law itself, which is almost always reactive to technological changes and, because of that, always gets twisted up when important, useful and disruptive innovations come along. As we noted four years ago, copyright law "is simply not set up" to handle something like a remote DVR. Even though a home DVR is clearly legal, and the only real difference between one at home and one in the cloud is the length of the cord between the DVR and the TV, the legal arguments to make them both legal are quite twisted.

Since then, we've seen a whole bunch of startups try to offer variations of streaming video online -- often relying on that quite twisted ruling in Cablevision. Each time we write about them -- companies like ivi, Zediva and Aereo -- we tend to note that all of them are doing incredibly inefficient and convoluted things on the back-end to try to stay within the confines of the law, as established by the Cablevision ruling. But to any objective observer considering what makes the most sense for a company and its users, all of the Rube Goldbergian designs of these companies seem entirely pointless. The goal is the same: to reasonably offer streaming services that match what people can do at home with a DVR or a DVD player -- but it has to be twisted to make that work within the whacked out language of the law.

And that's because the law is never written with innovation in mind. Quite the opposite. The history of copyright law is that every time something new comes along, Congress duct tapes on some new "right" to make it work. The 1909 Copyright Act was driven by the scary, scary invention of the player piano, which was going to wipe out the sheet music business or something. But the internet mucks with all of that -- in part by bringing together different roles that had previously been separate. The end result is that different aspects of copyright law may or may not apply, depending on where you sit.

Law professor James Grimmelmann has picked up on this and written an absolutely brilliant piece over at Ars Technica, where he dives into the nitty gritty details of all of this to explain how copyright law for streaming went insane. Here's the opening:

Suppose I could offer you a choice of two technologies for watching TV online. Behind Door Number One sits a free-to-watch service that uses off-the-shelf technology and that buffers just enough of each show to put the live stream on the Internet. Behind Door Number Two lies a subscription service that requires custom-designed hardware and makes dozens of copies of each show. Which sounds easier to build—and to use? More importantly, which is more likely to be legal?

If you went with Door Number One, then you are a sane person, untainted by the depravity of modern copyright law. But you are also wrong. The company behind Door Number One, iCraveTV, was enjoined out of existence a decade ago. The company behind Door Number Two, Aereo, just survived its first round in court and is still going strong.

The whole piece is totally worth reading. But it keeps going back to the same thing. Thanks to a combination of ridiculously antiquated copyright law and the 2nd Circuit's right result-but-for-odd-reasons ruling in the Cablevision case, we have a ridiculous setup where no one ever seems to take into account just what's happening for the end user, but rather focuses on the back-end to either jump through silly hoops (if you believe these services are legal) or to find questionable loopholes (if you're a copyright maximalist) to try to show that your service is legal. The end result is not only very bizarre, convoluted and inefficient systems that make no sense, and which no sane person would choose to set up as a business, but also one where we just see an ongoing stream of wasteful legal battles.

In talking about Zediva -- the company that set up individual DVD players in a data center which could stream only a single copy of an actual DVD playing at a time to a single user -- Grimmelmann again notes that none of this makes any sense:

And once again, it's a business model that would not exist in a world with copyright policy that was not demonstrably insane. Rapidly spinning optical discs make sense as a distribution technology because they're compact and durable. But they're a hassle and a half for playback, because they scratch, skip, and make random access a pain. If you're going to use the Internet for distribution, better to take the DVDs out of the picture and use them as coasters. But since Cablevision had opened up what seemed like a gap in copyright law, Zediva poured shiny lacquered discs into the breach.

Is there a way out of this that doesn't necessarily require a total dismantling of copyright law? Grimmelmann suggests that the more common sense (i.e., not insane) approach would be to actually look at what the end-user experience is:

Perhaps we can think about the problem of copyright on the Internet another way. Instead of asking which back-end technologies are legal, it might make more sense to ask what it is legal for users to do with computers on the front end. This approach would let people spend less time worrying about the exact definitions of "reproduction" and "performance" and more time thinking about users' rights, especially under fair use.

Cablevision itself illustrates what might have been. The whole point of the RS-DVR was that it was a perfect substitute for a home DVR. Reasoning by analogy, then, we might say that the two ought to either both be legal or both be illegal. And since home DVRs seem here to stay, it ought to be permissible for Cablevision to offer its customers exactly the same service they could have gotten by buying a gizmo. Call it "noninfringing personal fair use" and we can all go home.

Unfortunately, he notes that such a result wasn't possible in the Cablevision case, because Cablevision itself chose not to litigate the fair use issue in its case. End result? More insanity.

Of course, even Grimmelmann's solution potentially leads to some other issues, as well. For example, we've long argued that an embedded video on a website isn't infringing because it's no different than a link -- and that if there's infringement, it's from the uploader or hosting provider, rather than the intermediary who posted the embed code. But under Grimmelmann's "end user" analysis, then anyone who embeds could be liable as well, as to the end user, it wouldn't appear any different than a site that hosted the content. That raises some difficult questions as well.

But there's a reason for that: because these laws were designed for a very different era and very different technology. The concept of an open internet, and even something like an "embed code" is completely foreign to copyright law, meaning that it's legality is very much in the eye of the beholder. And really, that just serves to highlight the real problem here: copyright law isn't built for modern technology, and that's creating all sorts of problems for innovative services.

Either way, Grimmelmann's whole article is absolutely worth reading, so go check it out, even if it may make you bang your head repeatedly at the pure insanity of the situation we're in today.

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Filed Under: copyright, insanity, streaming
Companies: aereo, cablevision, ivi, zediva

27 Comments

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weneedhelp (profile), 31 Aug 2012 @ 10:15am

Greedtards
"This approach would let people spend less time worrying about the exact definitions of "reproduction" and "performance" and more time thinking about users' rights, especially under fair use."

To greedtards users have no rights, an the only use that is fair, is when they get paid every time your body consumes the content.
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Anonymous Coward, 31 Aug 2012 @ 10:16am

DVRs
The thing about DVRs is that they are completely and utterly unnecessary. They exist because the content owners are so frightened of having the shows online that they are still making people record off cable. The DVR should be dead and buried at this point.

I can't help but wonder if this is how it was when television first got started. After all, I doubt the advertisers were quick to jump on the new technology. Mad Men, which I treat as a completely factual representation of ad life in the 60s, initially shows TV as sort of a second class citizen compared to magazines and newspapers. But companies can easily upload their entire catalogs to Youtube and even monetize it. For practically nothing. No hosting charges. Just collect a check.
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Chosen Reject (profile), 31 Aug 2012 @ 10:32am

Sounding like a maximalist AC
copyright law isn't built for modern technology
And it can't be. Copyright could only work in a day when copying and distributing were hard. It was intended as a monopoly favor to publishers who wanted to stop their competitors. The claim was that setting up the printing press and distributing all that paper was hard and expensive. And it was, but whether it was hard and expensive enough to justify government granted monopolies is a separate issue because today it's not hard, and it's dang cheap. Copyright serves no purpose. Abolish it.
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Ninja (profile), 31 Aug 2012 @ 10:40am

Suja is a TD victim of the insanity heh.

I don't think we can solve the problems by shifting the point of view simply because copyright doesn't allow a change of point of view after it's been turned into a Frankenstein after years of Mickey Mouse lobbying. It needs to be scrapped and rebuilt with this mindset.
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James Plotkin (profile), 31 Aug 2012 @ 10:46am

Broken copyright
I read the Grimmelmann article on Ars Technica. I agree with Mike that it's a great read. Professor Grimmelmann certainly has a lot of insight on the Internet as it relates to copyright law.

Still, one thing kind of bothers me and it has to do with the perspective from which his comment is meant. Grimmelmann suggests that we focus on the front end (end user) rather than the back end (service provider). The problem with this approach (from the provider's perspective) is that both the end user and the provider are bound by copyright law. It is insufficient for a provider to assure that their service is offered in such a way that the end user is only doing what they are allowed to do; they must, themselves, not be infringing.

However, I think that professor Grimmelmann's perspective is an excellent one from a policy optic. If legislators viewed the question of copyright from the perspective of the end use, it would make it a lot easier to assure that the back-end activities don't infringe copyright so long as the front-end activities don't. I'm quite sure that this symbiosis can only be achieved by the enactment of laws axed on user rights.

Unfortunately, copyright (though intended to strike a balance between the interests of all groups concerned) is primarily a creator centered economic right. It would therefore take a complete 180 as tot he way we view the copyright.
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sorrykb (profile), 31 Aug 2012 @ 10:50am

innovation vs copyright law
The history of copyright law is that every time something new comes along, Congress duct tapes on some new "right" to destroy it.

There, fixed that for you.
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James J Cupero, 31 Aug 2012 @ 10:53am

James J Cupero
awesome blog, thank you and keep it up!
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James Plotkin (profile), 31 Aug 2012 @ 10:55am

Re:
Agreed. That's more or less the conclusion I came to bellow based on the very nature of the right in question.

I don't know that we should change the focal point away from the creator though. The right just needs to be a little less strong.
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Anonymous Coward, 31 Aug 2012 @ 11:00am

solution for today's era? remove all restrictions for stopping recording or streaming or watching content, or remove all content from the internet. as it stands at the moment, the entertainment industries want everyone to stream, download, record and copy as long as they are paid even more than they are for the little plastic discs that are nowhere near as indestructible as they were billed to be, whilst costing even less (almost peanuts) to give those services over the internet. i prefer the latter option. it takes away all temptation and all doubt of doing wrong. however, i bet it would be about a month before there was such a load of moaning from those industries. in other words, it doesn't matter what is done, the entertainment industries are never, ever, going to be satisfied!
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SujaOfJauhnral (profile), 31 Aug 2012 @ 11:03am

Re:
Suja is a TD victim of the insanity heh.

Literally.

Sometimes I question if I have become as childish, obsessed and depraved as the trolls. It's gotten to a point where I would just like to get over it and forget about the whole mess.

Problem is, how do you get over about something that is being CONSTANTLY shoved down your throat? How do you forget something that is CONSTANTLY reminding you of it's existence by removing sites/songs/videos/mods/art/etc; things you use to forget about it?
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SujaOfJauhnral (profile), 31 Aug 2012 @ 11:08am

Re: Greedtards
the only use that is fair, is when they get paid every time your body consumes the content.

If you're livin in a bubble and you haven't got a care
Well, you're gonna be in trouble, gonna copyright your air
What you got is what we need ($$$) and all we do is dirty deeds
We're the IPballs, Watch Out! we're the IPballs
We're the master of IP
Hey, Don't mess around with the IPballs
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Jeff_Vader_runs_the_Deathstar? (profile), 31 Aug 2012 @ 11:17am

Re: Greedtards
Not exactly true...

their "fair use" would also include payment for thinking about consuming, talking about consuming, overhearing someone else consuming, reading a tale of someone consuming, and a general fee based on your fair share of missed profits because someone, somewhere might have consumed without payment.
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The eejit (profile), 31 Aug 2012 @ 11:32am

Re: Re:
Down that path lies revolution.
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Anonymous Coward, 31 Aug 2012 @ 11:47am

Re: Re: Greedtards
A general fee based on your fair share of missed profits because someone, somewhere might have consumed without payment.

Ahh yes, the infamous Schrodinger's infringer clause of Title 17.
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surfer (profile), 31 Aug 2012 @ 12:09pm

Re:
Sure they would, once an entertainment tax is law, like sales tax, or income tax, and of course the Internet must be banned.
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Anonymous Coward, 31 Aug 2012 @ 12:32pm

Re: Re: Re:
Down that path lies revolution.

Don't laugh. It's the little things that trigger revolutions (the "straw that breaks the peoples' back" effect).

The maximalist greedtards who own the politicians and work the politicians' wooden puppet heads are filthy rich and keep twisting the knives (because they're driven by greed and it makes them even more money, natch). One day, they'll twist it just a bit too much.

Copyright is not a major political issue, but the maximalist greedtards who think they should get paid every time someone dreams about someone who knew someone that once saw their horrid garbage are in for a shock. Come the next revolution (and it will come - not even the once-mighty US has developed magic that defies all known human history), the maximalist greedtards will be hanging by the neck from the gallows along with numerous other abusive extremists, political puppets and police state participants.

It's just a matter of time. Some predict another US revolution within 8 years.
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John Fenderson (profile), 31 Aug 2012 @ 12:38pm

Re: Re:
There are two kinds of crazy: good-crazy and bad-crazy. You just might be the good-crazy.

Problem is, how do you get over about something that is being CONSTANTLY shoved down your throat?

Don't. Work to resist it, certainly. Never get over it if you mean forgetting about it. However, perspective is needed to prevent one from falling into the bad-crazy category.

Relax. Disconnect. Take a deep breath.

Personally, I cope with it by ignoring everything put out of RIAA labels, and most things put out by MPAA studios. I don't buy them, stream them, or pirate them. I just fight them when they encroach on our collective freedoms.

This has opened my eyes to a whole world of music, art, and literature that I didn't realize existed, where the best examples are orders of magnitude better than the best examples from the mainstream sources, and where I get the joy of, in most cases, paying the artist directly -- and in many cases getting a personal thank you directly from them.

I never knew how completely rich and varied the musical and art world was before I stopped paying attention to the corporate sources.

This helps me cope because I know that if the mainstream producers didn't behave as egregiously awful as they do, I would likely have never left their fold and never even suspected the existence of the world of true riches so readily available.
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The eejit (profile), 31 Aug 2012 @ 1:40pm

Re: Re: Re: Re:
...you thought I was joking?

Wow. I know what is coming, and fairly soon. The signs are all persent, and the similarities in curcumstance are remarkable.
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arcan, 31 Aug 2012 @ 2:13pm

Re: Re: Re: Re:
not going to happen. mcdonalds will close and a lot of people will riot against the revolution til it opens back up
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arcan, 31 Aug 2012 @ 2:16pm

Re: Broken copyright
problem is we have so many international "agreements" (really US attempts at forcing copyright down people's throats) that we literally can't 180 attitudes on it.
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Anonymous Coward, 2 Sep 2012 @ 7:36am

The law has done what the law should do - it has made it hard or impossible for companies who seek to profit from the work of others without compensation.

It's pretty clear what is going on here. When companies stop thinking of movies, music, videos, and tv shows as "free raw material" and start understanding that there are costs involved, the more likely they will come up with winning, legal services. Until then, they are doomed to fall down, victims of their own ignorance or arrogance.
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Anonymous Coward, 3 Sep 2012 @ 8:29pm

Re:
"Free raw material"? No one's said that. People want to do with computers what they've been doing with cassettes and VCRs for years.

During that time, the relevant industries producing "free raw material" not only survived, but boomed. There's no problem here. If the law is preventing people from doing the above, it's clearly overstepping.
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dennis deems, 4 Sep 2012 @ 7:21am

What's the opposite of a tautology?
The law has done what the law should do - it has made it hard or impossible for companies who seek to profit from the work of others without compensation.

That's a brilliantly succinct description of the entertainment industry. Kudos!
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DanZee (profile), 4 Sep 2012 @ 12:30pm

Online Radio
Gee, I just wanted to operate a "legal" not-for-profit hobby online radio station and by 1998 it was basically made illegal. I wish I had millions of dollars to try to come up with a create way to get around the copyright laws.
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Silver Fang (profile), 25 Sep 2012 @ 4:26pm

It seems like copyright and the Internet are incompatible with each other.
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Mark D., 26 Apr 2013 @ 10:27pm

Re: Re: Broken copyright
As if international agreements had ever stopped us before.
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Mike Gale (profile), 6 Mar 2014 @ 2:28pm

Not a sane foundation for a civilisation
When I analyse this, I see a legal system that is not up to the job.

The way it works is simply NOT FIT for the purpose it's designed for.

Any civilisation built on such things is maybe doomed. Mankind needs to be rid of the lunacy. I'd prefer determined evolution, very soon. The, high probability, alternative is revolution, but that tends to take us backwards!
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