That is why I say that Aereo is Schrödinger's CATV. SCOTUS says they are too much like a cable company, but ivi says they can't be a cable company.
It's two separate issues. (1) The Court held that Aereo performs because it does what a cable system does, namely, receives and retransmits broadcasts. (2) The broadcasters are saying Aereo isn't a cable system because it doesn't meet the definition in Section 111 (or, more specifically, the Second Circuit's interpretation of 111 in ivi). To borrow Mike's terms, it quacks like a duck, and quacking like a duck means it's performing. But it's not really a duck. The first issue looks at whether it acts like a duck. The second looks at whether it really is a duck. Ducks aren't the only things that quack, so it's not inconsistent to say it quacks yet it's not a duck.
You sir, are argumentative as hell... but you admit when you are wrong, and you've got quite a few people picking apart a Supreme Court decision who may have not normally done so. Good for you.
Law-types tend to like arguments. Thanks for the comment. :)
i'm sorry, but that is just flat bullshit. A performance being public or private has zero to do with whether it was paid for in the first place. Either it is public or private, period. You can then address whether that performance was authorized or not - two distinctly separate issues.
You may disagree with it, but that's what the Supreme Court said so that's the law. I think it makes sense. What makes a performance private is not just who it's sent to. For example, YouTube sends me a performance that only I can see, yet it's still publicly performing. Why? Because it's sending me content that I don't have an existing legitimate interest in. Contrast this with a storage locker, where I can stream content that I've uploaded. These performances are private because I have a legitimate interest in the content that I uploaded.
The Anonymous Coward below did the work and posted this per 111 - where exactly does it explicitly NOT say "internet retransmissions?"
That's how the Second Circuit interpreted it in ivi, and Aereo is in the Second Circuit. The district court and any panel of the Second Circuit is bound by it. I agree that the text of Section 111 favors Aereo, on a quick read. I haven't really thought about this issue. I know the Copyright Office agrees with the ivi court's read, but I'm not sure why.
I know legally that may be true, but out in the real world that seems completely crazy to me since Aereo is using OTA, free broadcast signals that anyone with an antenna can already receive and to which the rights holders were ALREADY compensated for.
You can receive the broadcasts yourself, but it's different when someone acts as a middleman between you and the broadcasts.
IMO, it does indeed say "something" about delayed transmissions... it talks about receiving the transmission at different times, which I would equate to being "delayed"..
You're correct. I was careless there. What I mean is that the delayed transmissions weren't before the Court, so it didn't address them. However, it did address the live transmissions, and some of that language can be applied to the delayed transmissions. As you mention, the Court did talk about transmissions occurring at "different times," and this certainly can be applied to the delayed transmissions.
I'm looking for the specific language in the opinion that he's referring to. I don't think there is any such language, which is my point. If he can't produce that language he's referring to, then that backs up my point.
If Aereo MUST operate as a cable company, per the Supreme Court decision, or cease to exist, why are they being denied the opportunity to do so?
It has to do with Section 111 and its definition of "cable system." The Second Circuit, where this litigation is happening, decided in the ivi case that "cable system" under Section 111 doesn't include internet retransmissions. Aereo is trying to say that ivi doesn't apply because ivi transmitted everywhere while Aereo only transmits a user's local channels. But I don't think that argument will work as there is other language in ivi that still applies and that works against Aereo's position.
I'm confused or you're backtracking out of a corner you painted yourself into?
I completely disagree that that's what the court meant by "contemporaneous" given how often it references the video *retransmitting* when the user selects it.
So under your interpretation of the court's opinion -- in which a company can take a copyrighted work, store it somewhere on their end (since you argue "contemporaneous" ONLY means "not a download" and not "a contemporaneous retransmission") and display that to the user, and the user views the video as it streams to them -- how is YouTube not prima facie illegal?
I've not painted myself into a corner. I've given this a lot of thought. Maybe I'm not explaining it well.
You quoted this passage:
For another, an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work. See Brief for Respondent 31 (“[I]f a distributor . . . sells [multiple copies of a digital video disc] by mail to consumers, . . . [its] distribution of the DVDs merely makes it possible for the recipients to perform the work themselves—it is not a ‘device or process’ by which the distributor publicly performs the work” (emphasis in original)).
Sending a file that can be perceived contemporaneously is what makes makes that transmission a performance. If the transmission is for downloading, and not streaming, then it's not a performance. The Court is getting this from the Second Circuit. I can dig up that case law if you like.
As far as YouTube goes, YouTube *is* publicly performing. It has licenses to publicly perform, from copyright owners and from uploaders. When you upload something to YouTube, you give it a license to publicly perform. But more importantly, YouTube is protected by the DMCA under Section 512(c) for its user-generated content. So even if it doesn't have a license for some content, as long as it doesn't know that content to be infringing, the DMCA protects it. I'm simplifying here, but I hope that makes sense.
Scalia's opinion was using parts of Cablevision as it's foundation. If the courts end up ruling that Aereo's record function is a public performance wouldn't that suddenly outlaw every remote DVR service out there, including those of the cable companies because it would be considered a second public performance?
Good question. I think that under Aereo, as long as the customer has obtained a legitimate interest in the content, then the performances are not public. For example, if I upload a file to a locker and then stream it back, the performance is private because it occurs after I've obtained a legitimate interest in it. This is the problem for Aereo. Its customers don't have a legitimate interest in the copies on the remote DVR--even for the delayed transmissions.
Now you are contending that even though the justices made 2 references to contemporaneous, that they really intended for that to cover other situations.
I'm pointing out that the discussion of contemporaneity in the Court's opinion is *not* about the retransmission being contemporaneous with the original broadcast. That's kind of a big deal, no? It's how you distinguish a performance from a distribution. Downloading is distribution (and reproduction). Streaming is performance. The difference? Contemporaneous perceptibility. And it's not the Court saying this. Circuit courts have said this as well.
No. In the example of YouTube, a copy is being made of the material and it doesn't have to be viewed immediately upon transmission. There are also storage lockers that do allow for streaming rather than just downloading. If watching while media is streaming is a performance, then whether a transmission is a performance could depend on how slow a viewer's internet connection buffers the video. That's completely arbitrary and attempting to apply 20th century technological concepts such as tv broadcast performances to 21st century technology.
Huh? This is a legal distinction. Performances are contemporaneously perceptible. Distributions are not. This is what the Court means here:
For another, an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work. See Brief for Respondent 31 (“[I]f a distributor . . . sells [multiple copies of a digital video disc] by mail to consumers, . . . [its] distribution of the DVDs merely makes it possible for the recipients to perform the work themselves—it is not a ‘device or process’ by which the distributor publicly performs the work” (emphasis in original)).
Sending a DVD through the mail is not a performance because there's no contemporaneous perceptibility. Streaming a video from Aereo, on the contrary, is a performance because it can be perceived contemporaneously. I realize that the distinction is not always so clear, such as when there are buffer copies. But, generally, when you download something, it's not a performance, and when you stream something, it is. If a storage locker lets you download and stream something, then it can be both a performance and the distribution.
Sheesh, you always do this and you're the one who always ends up looking disingenuous for it. Don't make wild accusations if you aren't prepared to do the work to back them up. You better get to writing a point-by-point analysis of that link's contents if you want anyone to take your seriously.
How is it disingenuous to ask this person to cite the specific guidelines he's mentioned? I am prepared to back up my arguments. I'm seeing if this person can explain his argument first.
First off, you flat-out admit that non-contemporaneous (delayed) transmissions were not covered by this ruling, but I'd go further than that. THE PLAIN TEXT of the opinion hangs its hat on the fact that Aereo's transmissions are (a) contemporaneous, and (b) to a collection of non-related people.
You appear to be confused by the contemporaneous thing. What's makes them performances is that the transmissions can be viewed contemporaneously as they are received. This is in contradistinction to a download, which is downloaded and then perceived later. It's *not* about the transmission from Aereo being contemporaneous with the original broadcast. Further evidence of this is the Court's statement about transmissions being received at "different times." And as far as the unrelated people goes, whether the transmissions are live or delayed, the same underlying work is being transmitted to unrelated people--thus making the performances public.
Justice Scalia was correct that this is "one of the first questions the lower courts will face." His theory about Aereo not performing because it "does not select the programs viewed by its users," however, is inconsistent with the Court's holding. This is a dissent, and Scalia thought that Aereo didn't perform at all. The Court, on the other hand, disagreed. The Court's opinion is the law. Scalia's dissent is not.
You are correct, they did not use the words "delayed transmissions", and regarding your above comment, they did not use the word "guideline".
They specified what was not allowed, so Aereo is using that as a "guideline" to do transmissions that are not "contemporaneous", so we call those transmissions "delayed".
Given how basic that is to understand, your failure can best be explained the famous Upton Sinclair quote.
I think you're making the same mistake as Mike as to what "contemporaneous" means. It's not about Aereo retransmitting broadcasts at the same time the broadcasts are originally sent. The Court is saying that the retransmissions are performances because they can be perceived at the same time as they are sent.
So please explain how -- if SCOTUS's issue was surrounding contemporaneous retransmission -- changing the system to prevent contemporaneous retransmission doesn't bring Aereo into compliance.
The issue before the Court was the live transmissions. The delayed transmissions were not. However, the Court's analysis of the live transmissions is broad enough that it can be applied to the delayed transmissions. You quoted passages that show just that.
For example:
Under the Clause, an entity may transmit a performance through multiple transmissions, where the performance is of the same work. Thus when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it “transmit[s] . . . a performance” to them, irrespective of the number of discrete communications it makes and irrespective of whether it transmits using a single copy of the work or, as Aereo does, using an individual personal copy for each viewer.
Moreover, the subscribers to whom Aereo transmits constitute “the public” under the Act. This is because Aereo communicates the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other."
The Court says that it doesn't matter how many copies are used. Whether each customer has his own copy, or whether one copy is used for multiple customers, it's the same result. What matters is that the same *work* is being transmitted. And what makes it public is that the work is being transmitted to several people who are unrelated. The Court is talking about the live transmissions here, but the same would apply to the delayed transmissions since the Court's analysis is of Section 101 generally.
"QLAD" is not the law. The Court looked at how Aereo did the same thing as a cable system such that it caused the performances to occur under 101. It did not look at whether Aereo is a cable system under 111. It's not inconsistent to say (1) Aereo performs because it does what cable systems do, and (2) Aereo is not a cable system as that term is defined in a different section of the Act.
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It's two separate issues. (1) The Court held that Aereo performs because it does what a cable system does, namely, receives and retransmits broadcasts. (2) The broadcasters are saying Aereo isn't a cable system because it doesn't meet the definition in Section 111 (or, more specifically, the Second Circuit's interpretation of 111 in ivi). To borrow Mike's terms, it quacks like a duck, and quacking like a duck means it's performing. But it's not really a duck. The first issue looks at whether it acts like a duck. The second looks at whether it really is a duck. Ducks aren't the only things that quack, so it's not inconsistent to say it quacks yet it's not a duck.
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Law-types tend to like arguments. Thanks for the comment. :)
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You may disagree with it, but that's what the Supreme Court said so that's the law. I think it makes sense. What makes a performance private is not just who it's sent to. For example, YouTube sends me a performance that only I can see, yet it's still publicly performing. Why? Because it's sending me content that I don't have an existing legitimate interest in. Contrast this with a storage locker, where I can stream content that I've uploaded. These performances are private because I have a legitimate interest in the content that I uploaded.
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That's how the Second Circuit interpreted it in ivi, and Aereo is in the Second Circuit. The district court and any panel of the Second Circuit is bound by it. I agree that the text of Section 111 favors Aereo, on a quick read. I haven't really thought about this issue. I know the Copyright Office agrees with the ivi court's read, but I'm not sure why.
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You can receive the broadcasts yourself, but it's different when someone acts as a middleman between you and the broadcasts.
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You're correct. I was careless there. What I mean is that the delayed transmissions weren't before the Court, so it didn't address them. However, it did address the live transmissions, and some of that language can be applied to the delayed transmissions. As you mention, the Court did talk about transmissions occurring at "different times," and this certainly can be applied to the delayed transmissions.
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Jackass.
I'm looking for the specific language in the opinion that he's referring to. I don't think there is any such language, which is my point. If he can't produce that language he's referring to, then that backs up my point.
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It has to do with Section 111 and its definition of "cable system." The Second Circuit, where this litigation is happening, decided in the ivi case that "cable system" under Section 111 doesn't include internet retransmissions. Aereo is trying to say that ivi doesn't apply because ivi transmitted everywhere while Aereo only transmits a user's local channels. But I don't think that argument will work as there is other language in ivi that still applies and that works against Aereo's position.
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Re: Re: Re: Bait-and-switch
I completely disagree that that's what the court meant by "contemporaneous" given how often it references the video *retransmitting* when the user selects it.
So under your interpretation of the court's opinion -- in which a company can take a copyrighted work, store it somewhere on their end (since you argue "contemporaneous" ONLY means "not a download" and not "a contemporaneous retransmission") and display that to the user, and the user views the video as it streams to them -- how is YouTube not prima facie illegal?
I've not painted myself into a corner. I've given this a lot of thought. Maybe I'm not explaining it well.
You quoted this passage:Sending a file that can be perceived contemporaneously is what makes makes that transmission a performance. If the transmission is for downloading, and not streaming, then it's not a performance. The Court is getting this from the Second Circuit. I can dig up that case law if you like.
As far as YouTube goes, YouTube *is* publicly performing. It has licenses to publicly perform, from copyright owners and from uploaders. When you upload something to YouTube, you give it a license to publicly perform. But more importantly, YouTube is protected by the DMCA under Section 512(c) for its user-generated content. So even if it doesn't have a license for some content, as long as it doesn't know that content to be infringing, the DMCA protects it. I'm simplifying here, but I hope that makes sense.
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Paid to post on Techdirt? LOL!
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Good question. I think that under Aereo, as long as the customer has obtained a legitimate interest in the content, then the performances are not public. For example, if I upload a file to a locker and then stream it back, the performance is private because it occurs after I've obtained a legitimate interest in it. This is the problem for Aereo. Its customers don't have a legitimate interest in the copies on the remote DVR--even for the delayed transmissions.
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I'm pointing out that the discussion of contemporaneity in the Court's opinion is *not* about the retransmission being contemporaneous with the original broadcast. That's kind of a big deal, no? It's how you distinguish a performance from a distribution. Downloading is distribution (and reproduction). Streaming is performance. The difference? Contemporaneous perceptibility. And it's not the Court saying this. Circuit courts have said this as well.
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Huh? This is a legal distinction. Performances are contemporaneously perceptible. Distributions are not. This is what the Court means here:Sending a DVD through the mail is not a performance because there's no contemporaneous perceptibility. Streaming a video from Aereo, on the contrary, is a performance because it can be perceived contemporaneously. I realize that the distinction is not always so clear, such as when there are buffer copies. But, generally, when you download something, it's not a performance, and when you stream something, it is. If a storage locker lets you download and stream something, then it can be both a performance and the distribution.
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How is it disingenuous to ask this person to cite the specific guidelines he's mentioned? I am prepared to back up my arguments. I'm seeing if this person can explain his argument first.
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Re: Bait-and-switch
You appear to be confused by the contemporaneous thing. What's makes them performances is that the transmissions can be viewed contemporaneously as they are received. This is in contradistinction to a download, which is downloaded and then perceived later. It's *not* about the transmission from Aereo being contemporaneous with the original broadcast. Further evidence of this is the Court's statement about transmissions being received at "different times." And as far as the unrelated people goes, whether the transmissions are live or delayed, the same underlying work is being transmitted to unrelated people--thus making the performances public.
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They specified what was not allowed, so Aereo is using that as a "guideline" to do transmissions that are not "contemporaneous", so we call those transmissions "delayed".
Given how basic that is to understand, your failure can best be explained the famous Upton Sinclair quote.
I think you're making the same mistake as Mike as to what "contemporaneous" means. It's not about Aereo retransmitting broadcasts at the same time the broadcasts are originally sent. The Court is saying that the retransmissions are performances because they can be perceived at the same time as they are sent.
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The issue before the Court was the live transmissions. The delayed transmissions were not. However, the Court's analysis of the live transmissions is broad enough that it can be applied to the delayed transmissions. You quoted passages that show just that.
For example:The Court says that it doesn't matter how many copies are used. Whether each customer has his own copy, or whether one copy is used for multiple customers, it's the same result. What matters is that the same *work* is being transmitted. And what makes it public is that the work is being transmitted to several people who are unrelated. The Court is talking about the live transmissions here, but the same would apply to the delayed transmissions since the Court's analysis is of Section 101 generally.
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I think the destruction here comes from within--and it all falls on Mike.
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Re: QLAD vs. letter of the law
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