There's a few paragraphs about the fallacy by name in the article. I'm not sure I buy the argument. So copyright is bad because the money we spend on copyrighted works could have been spent elsewhere? So what? Couldn't you say that about anything? If you spend more money on X, you will spend less on Y. Duh. We spend money on copyrighted works because it benefits us, just like we spend money on tons of other things that benefit us. The argument seems really silly to me. Again, so what if the money we spend on one product means we aren't spending it on another?
average_bob and out_of_the_mind comments in 3, 2...
LMAO! On the surface, I think the DOJ is correct: Dotcom launching a new iteration of the service that he's already being prosecuted for is stupidity at its finest. What kind of an idiot does that? I look forward to reading the DOJ's latest brief, and I'm thankful to Mike for posting it.
Mike has been advocating an independent invention defense against patent infringement for quite some time now -- that is, in the absence of actual copying, a patent holder should not be able to sue a subsequent innovator. There are plenty of posts going over the rationale for such a defense, and I don't want to rehash those arguments when you can just click on those links above and read the originals.
If it's a defense, then I don't see how it would stop a patent holder from suing. Nor do I understand your case for why you think this defense is needed. Can you explain?
The issue is the retransmission of broadcasts. Cablevision has a license to rebroadcast transmissions because such transmissions are public performances that need to be licensed. Aereo is trying to do the same thing Cablevision does, i.e., retransmit broadcasts, but without paying the licensing fees that Cablevision pays.
Not illegal - but should be subject to the same requirements as running a cable company. You know, everything from "must carry" to paying for community channels, information channels, and the like. Oh yeah, and paying for the content they use, if that is the way the deal operates.
Further, you might have the question of licensing and permits to operate such a business. Does operating a distribution system such as this require and FCC license?
Just because technology allows something doesn't mean there isn't already laws that cover how it is support to operate. If Aereo wants to be a cable company, fine - they can do all that a cable company has to do. Do you think they would still want to operate if they had to do all that?
That's a great point. Mike focuses on the fact that his tech buddies have figured out ways to sell other people's content for them. Of course, his buddies don't want to pay for that content. They can't just skip the part where the content is paid for by callikng it "Innovation!"
So... Aereo is doing exactly what the cable companies used to do (capture aerial transmissions and rebroadcast them over their cable network), but since it involves the internet it's illegal. That's the thrust of your argument. By the way, the cable companies got a pass on doing exactly that.
The difference is that the retransmissions by the cable companies were public, and therefore required a license. The cable companies didn't get a "pass on doing exactly that," they got a license *to do* exactly that--the statutory, compulsory retransmission license. Similarly, the retransmissions by Cablevision--from the head end to the remote DVRs--though public, were licensed (or so the argument goes, but I'm not convinced that's exactly right). Aereo is trying to do what the cable companies and Cablevision did not--make unlicensed, public performances.
ivi was shot down because it did not qualify as a cable service under Section 111. The 'missing link' from Copyhype is that Aereo (and ivi) are a cable service. If they are a if all they are is a cable service, they should be able to function by giving the standard rebroadcast fee.
But Aereo is not arguing that they are a "cable system" as ivi argued, and Section 111 is not in issue in the Aereo appeal. Aereo instead is arguing that the performances involved are not even public. The claim is that they're private performances, so the public performance right is not even implicated.
The key to understanding the "missing link" argument put forth by Terry Hart on Copyhype is in knowing that each step along the way in which a work reaches its audience is considered to be a public performance. Or as the Second Circuit said in NFL v. Primetime, "each step in the process by which a protected work wends its way to its audience" is itself a public performance.
The "missing link" argument put forth on Copyhype involves Aereo's transmission from its antennae to its recording devices. In Cablevision, the transmission from the head end to the remote DVRs was not mentioned by the appellate court (as far as I can recall), because Cablevision had a license to retransmit the works. But Aereo has no such license, so the public performance that occurs between its antennae and recording devices is not licensed. While Cablevision was covered since it had a public performance license, Aereo is not.
That's the argument anyway, at least as I understand it. I'm not convinced that Cablevision had a license to send the performances from its head end to its remote DVRs, so I think there's maybe another layer of nuance there that's missing. But at the same time, I also think Cablevision is confusing and misguided. Perhaps it just doesn't fundamentally, and doctrinally, make sense. I'm not convinced the court applied doctrine so much as it made it up.
I get that. But I disagree with Mike's notion that this somehow shows "just how ill-prepared copyright law is for modern technology and innovation." The law is simple. The copyright owner has the exclusive right to publicly perform the copyrighted work. That's fundamental and doesn't change. The problem arises when "technology and innovation" bump up against that right, and the proper balance between the two has to get worked out over the years. To try and blame this on "stupid old copyright!" is just silly. All "technology and innovation" has to take into account preexisting rights, and this is just normal evolution. New cars have to take into consideration the federal guidelines for making new cars, just like "technology and innovation" has to take into consideration copyright rights.
Yeah! It's not like I posted the briefs on both sides and let people read them in full and make up their own... oh wait...
Posting briefs is easy. That doesn't negate anything I said. You still didn't "go into any of the legal nuances." You still just copied "Aereo's arguments that they're Just Like Cablevision!" You still provided no "actual analysis of whether that's true or whether there are material differences between the two." Etc. I don't get your point, if there even is one.
The OP called me out for comment, and the only comment I had was that you hadn't actually said anything substantive that I could comment on. I'm not surprised. The case law around the public performance right on the internet is far from settled, and it's filled with nuances upon nuances. This stuff is not easy.
"Internet freedom experts" including "Alexis Ohanian (Reddit, HipMunk, Breadpig), Ben Huh (Cheezburger), Michael Geist (Canadian copyright expert), along with people from EFF, Public Knowledge, Public Citizen, Open Media, ACLU and a bunch of others as well."
So is "internet freedom" a euphemism "not getting caught"?
As to legal analysis, would it not be moot until there is a court ruling on the matter settling it as a matter of law before trying to guess how the law will decide?
But the fun is in applying the existing doctrine to the new fact pattern and trying to guess which way the case will go based on who has the better overall argument (working forwards, as opposed to backwards). The nuances of the legal arguments are the fun part. How is this like Cablevision? How is it not? Who has the better fact, law, and policy arguments? For me anyway, this part is more fun than just getting the answer later. Of course, that's fun too though.
As they followed the same path as a precedent setting case on the topic to the letter of the law, and the otherside merely argues that because they followed the law they must be doing something wrong.
You will never be satisfied. You are not interested in having an honest conversation.
I'm here, right now, right here, ready and willing to have a productive and substantive discussion with Mike.
And he's nowhere to be found.
If he wants to prove that I'm incapable, then he should prove it by attempting to have a frank and honest discussion with me. He won't. Why? Because Mike is neither frank nor honest.
What's there to say? Mike, of course, didn't go into any of the legal nuances. He just (predictably) copies Aereo's arguments that they're Just Like Cablevision! There's no actual analysis of whether that's true or whether there are material differences between the two, which is obviously *the* major topic of debate in this case. Mike just latches onto their argument, as he sides with every accused infringer. Instead of pointing to the actual substantive legal arguments, he cites the line about how they're trying to kill innovation just like the VCR and the Remote DVR! Instead of analyzing the legal issues, Mike decides which side he wants to win for policy reasons and then, working backwards, pretends like that side must have the better legal argument. Snorezville, dude. Sorry if you got your popcorn out for nothing.
And I told him that if he addressed me directly, I would take that as an invitation to respond. He addressed me directly in an article. So I'm here, responding. I'll discuss the issues with him directly at any time. He's got nothing but excuses, excuses, excuses. Funny that. Almost like he's hiding something.
Bottom line: Mike has excuses followed by more excuses, but he won't ever just have a direct discussion with me on the merits of his personal beliefs about a copyright issue. Why? Because he's a coward par excellence.
ROFLMAO! The lengths you guys will go to protect Mike is hilarious! Sure, Mike won't have a frank and honest discussion with me (or anyone else who challenges his fundamental beliefs) because we're just not able to have that discussion. It's certainly not Mike! No, Mike's not at all a coward for running away. That's brave!!!
What bullshit. Mike (and his sock puppets) always pretend like I'm just not capable or able to debate him. The truth, which obviously hurts severely, is that Mike doesn't discuss his true beliefs with detractors. Nothing desperate or dishonest about that. You've backed the right horse, AC! Why explain yourself when you can just whine about the party asking for an explanation. That's so much easier than just having an honest discussion and being an honest person. Good on ya.
My point, which you would know if you followed the link provided, is that Mike's interpretation of the Constitution changes depending on his preordained, backwards-worked conclusion. When it's copyright, trademark, or any other IP, it's, "OMG! They've expanded it! Expansion is evil! It's not what it should be because it's not what it once was!" But when it's the First Amendment, it's "OMG! Thank goodness they've expanded it since expansion is great!" The joke's on Mike for working backwards like a zealot who is too ashamed of his own beliefs to talk about them directly and honestly with a critic. Ask yourself why Mike is so ashamed of his beliefs that he can't discuss them directly. That'll tell you everything you need to know about his mettle.
And, finally, my last editor's choice comment of the week, which actually made me laugh the most, is a comment from one of our usual critics, apparently insisting that you can't complain about the massive expansion of IP laws over time, without also complaining about the "expansion of the First Amendment."
I'm just pointing out how silly it is that Mike rants about the expansion of IP, but he never complains about the similar expansion of the First Amendment.
Yeah, really not much to say about that other than to shake your head and laugh. Such people do exist in this world, amazingly.
Get your stupid digs in, but you and I both know that you won't have a serious discussion with me on the merits of a copyright issue because you're too scared to have an "open, human, and awesome" discussion with a critic. Nothing desperate about that fact. Keep pretending like you're not a pretender. I'll be here ready to go any place, any time. You'll be hiding like a coward.
On the post: Copyright: The New Mercantilism
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On the post: DOJ Hints At Additional Charges Against Kim Dotcom If He Launches Megabox
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I'm not referring to Megabox. I'm talking about the "New Megaupload" called "Mega": http://torrentfreak.com/new-megaupload-will-deflect-copyright-liability-and-become-raid-proof-121018 /
Nice attempted deflection.
On the post: DOJ Hints At Additional Charges Against Kim Dotcom If He Launches Megabox
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LMAO! On the surface, I think the DOJ is correct: Dotcom launching a new iteration of the service that he's already being prosecuted for is stupidity at its finest. What kind of an idiot does that? I look forward to reading the DOJ's latest brief, and I'm thankful to Mike for posting it.
On the post: Yes, An Independent Invention Defense For Patents Is Completely Feasible
If it's a defense, then I don't see how it would stop a patent holder from suing. Nor do I understand your case for why you think this defense is needed. Can you explain?
On the post: Aereo: Has No One Noticed It's Insane That We're Being Accused Of Infringing BECAUSE We Carefully Followed The Cablevision Precedent?
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On the post: Aereo: Has No One Noticed It's Insane That We're Being Accused Of Infringing BECAUSE We Carefully Followed The Cablevision Precedent?
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Further, you might have the question of licensing and permits to operate such a business. Does operating a distribution system such as this require and FCC license?
Just because technology allows something doesn't mean there isn't already laws that cover how it is support to operate. If Aereo wants to be a cable company, fine - they can do all that a cable company has to do. Do you think they would still want to operate if they had to do all that?
That's a great point. Mike focuses on the fact that his tech buddies have figured out ways to sell other people's content for them. Of course, his buddies don't want to pay for that content. They can't just skip the part where the content is paid for by callikng it "Innovation!"
On the post: Aereo: Has No One Noticed It's Insane That We're Being Accused Of Infringing BECAUSE We Carefully Followed The Cablevision Precedent?
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The difference is that the retransmissions by the cable companies were public, and therefore required a license. The cable companies didn't get a "pass on doing exactly that," they got a license *to do* exactly that--the statutory, compulsory retransmission license. Similarly, the retransmissions by Cablevision--from the head end to the remote DVRs--though public, were licensed (or so the argument goes, but I'm not convinced that's exactly right). Aereo is trying to do what the cable companies and Cablevision did not--make unlicensed, public performances.
On the post: Aereo: Has No One Noticed It's Insane That We're Being Accused Of Infringing BECAUSE We Carefully Followed The Cablevision Precedent?
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I don't think that's quite it. The Second Circuit did indeed find that ivi was not a "cable system" entitled to the compulsory, statutory rate under Section 111. http://ipspotlight.files.wordpress.com/2012/08/wpix-v-ivi3.pdf
But Aereo is not arguing that they are a "cable system" as ivi argued, and Section 111 is not in issue in the Aereo appeal. Aereo instead is arguing that the performances involved are not even public. The claim is that they're private performances, so the public performance right is not even implicated.
The key to understanding the "missing link" argument put forth by Terry Hart on Copyhype is in knowing that each step along the way in which a work reaches its audience is considered to be a public performance. Or as the Second Circuit said in NFL v. Primetime, "each step in the process by which a protected work wends its way to its audience" is itself a public performance.
The "missing link" argument put forth on Copyhype involves Aereo's transmission from its antennae to its recording devices. In Cablevision, the transmission from the head end to the remote DVRs was not mentioned by the appellate court (as far as I can recall), because Cablevision had a license to retransmit the works. But Aereo has no such license, so the public performance that occurs between its antennae and recording devices is not licensed. While Cablevision was covered since it had a public performance license, Aereo is not.
That's the argument anyway, at least as I understand it. I'm not convinced that Cablevision had a license to send the performances from its head end to its remote DVRs, so I think there's maybe another layer of nuance there that's missing. But at the same time, I also think Cablevision is confusing and misguided. Perhaps it just doesn't fundamentally, and doctrinally, make sense. I'm not convinced the court applied doctrine so much as it made it up.
On the post: Aereo: Has No One Noticed It's Insane That We're Being Accused Of Infringing BECAUSE We Carefully Followed The Cablevision Precedent?
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I get that. But I disagree with Mike's notion that this somehow shows "just how ill-prepared copyright law is for modern technology and innovation." The law is simple. The copyright owner has the exclusive right to publicly perform the copyrighted work. That's fundamental and doesn't change. The problem arises when "technology and innovation" bump up against that right, and the proper balance between the two has to get worked out over the years. To try and blame this on "stupid old copyright!" is just silly. All "technology and innovation" has to take into account preexisting rights, and this is just normal evolution. New cars have to take into consideration the federal guidelines for making new cars, just like "technology and innovation" has to take into consideration copyright rights.
On the post: Aereo: Has No One Noticed It's Insane That We're Being Accused Of Infringing BECAUSE We Carefully Followed The Cablevision Precedent?
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Posting briefs is easy. That doesn't negate anything I said. You still didn't "go into any of the legal nuances." You still just copied "Aereo's arguments that they're Just Like Cablevision!" You still provided no "actual analysis of whether that's true or whether there are material differences between the two." Etc. I don't get your point, if there even is one.
The OP called me out for comment, and the only comment I had was that you hadn't actually said anything substantive that I could comment on. I'm not surprised. The case law around the public performance right on the internet is far from settled, and it's filled with nuances upon nuances. This stuff is not easy.
On the post: Tomorrow: Internet Freedom Experts Team Up For A Giant Reddit AMA
So is "internet freedom" a euphemism "not getting caught"?
On the post: Aereo: Has No One Noticed It's Insane That We're Being Accused Of Infringing BECAUSE We Carefully Followed The Cablevision Precedent?
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But the fun is in applying the existing doctrine to the new fact pattern and trying to guess which way the case will go based on who has the better overall argument (working forwards, as opposed to backwards). The nuances of the legal arguments are the fun part. How is this like Cablevision? How is it not? Who has the better fact, law, and policy arguments? For me anyway, this part is more fun than just getting the answer later. Of course, that's fun too though.
As they followed the same path as a precedent setting case on the topic to the letter of the law, and the otherside merely argues that because they followed the law they must be doing something wrong.
That's not at all what's happening here. That's the non-nuanced, tl;dr version. There's far more going on here. Some of the briefs are posted here: http://blog.copyrightalliance.org/2012/09/update-amicus-briefs-filed-in-aereo-case/ Aereo is, of course, saying they're just like Cablevision. They obviously set up their business around that case. But there are differences here, perhaps important ones. Copyhype has an interesting take: http://www.copyhype.com/2012/09/aereo-cablevision-and-the-missing-link/
Its nice to see you won the coin flip this time. Now pet bob on the head and go back to enjoying his service.
Ha. He generally has insights, but he's nutty at times too.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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I'm here, right now, right here, ready and willing to have a productive and substantive discussion with Mike.
And he's nowhere to be found.
If he wants to prove that I'm incapable, then he should prove it by attempting to have a frank and honest discussion with me. He won't. Why? Because Mike is neither frank nor honest.
On the post: Aereo: Has No One Noticed It's Insane That We're Being Accused Of Infringing BECAUSE We Carefully Followed The Cablevision Precedent?
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boB
OOTB
and
Average_joe
In 5... 4... 3... 2...
What's there to say? Mike, of course, didn't go into any of the legal nuances. He just (predictably) copies Aereo's arguments that they're Just Like Cablevision! There's no actual analysis of whether that's true or whether there are material differences between the two, which is obviously *the* major topic of debate in this case. Mike just latches onto their argument, as he sides with every accused infringer. Instead of pointing to the actual substantive legal arguments, he cites the line about how they're trying to kill innovation just like the VCR and the Remote DVR! Instead of analyzing the legal issues, Mike decides which side he wants to win for policy reasons and then, working backwards, pretends like that side must have the better legal argument. Snorezville, dude. Sorry if you got your popcorn out for nothing.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
I'm just pointing out how silly it is that Mike rants about the expansion of IP, but he never complains about the similar expansion of the First Amendment.
Yeah, really not much to say about that other than to shake your head and laugh. Such people do exist in this world, amazingly.
Cute, Mike. Of course you're to intellectually dishonest to admit that I was pointing out that you change your method of constitutional interpretation as it suits you: http://www.techdirt.com/articles/20121016/01151320714/dancing-baby-video-fight-heads-back-to-court-w ill-bogus-takedown-finally-get-punished.shtml#c714
Get your stupid digs in, but you and I both know that you won't have a serious discussion with me on the merits of a copyright issue because you're too scared to have an "open, human, and awesome" discussion with a critic. Nothing desperate about that fact. Keep pretending like you're not a pretender. I'll be here ready to go any place, any time. You'll be hiding like a coward.
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