That said, you're still making the same argument that it's about cable length for me. Here's why:
Aereo set up a box for each person just like Roamio is doing. Each box ports only to 1 user just like Roamio is doing.
Your claim that "Aereo... tramsmits to the members of the public" is wrong in the way you use it. It transmits to 1 user, for 1 user and is no different in the logic of the design than the Roamio. Aereo never set it up so that the signal from each antenna would work any different than the Roamio box does. That's how they thought they got around the Cablevision ruling.
In other words, the signal from Aereo is just as public of a signal as the Roamio (unless it's broadcast, unencrypted, or some other way for a man in the middle to potentially piggyback on). Just because the signal from Aereo goes through the internet doesn't automatically make it public. I mean does my online banking go to the public? Same difference.
Technologically, other than the cable length (Aereo being remote, Roamio being in the house) there is no FUNCTIONAL difference between the 2 services. You still have yet to make an argument of anything but the cable length.
Thanks for the reply, and sorry for the delay in responding.
As the Court held in Aereo, the one-to-one thing doesn’t mean the performance is private. You also have to look at the relationship of the user to the content being transmitted. And this is why I think Mike’s cable length argument is silly. If liability turns on the length of the cable, many cloud-based storage services would be infringing. But they’re not. If I store an MP3 in the cloud and stream it back later, the performance that occurs when the content is transmitted is private because of my preexisting relationship to the content. This is so even if the cloud service is considered to be the one causing this performance.
The Court saw Aereo as providing more than just a piece of equipment (like a VCR) because it enables users to access content they have no preexisting relationship to. Like a cable system, it uses antennas to capture broadcasts and then retransmits those broadcasts to the public. Roamio does not use a centralized system where broadcasts are captured and retransmitted. And the content that the user records on Roamio is content the user has already acquired from the user’s own antenna. The content recorded with Aereo, by contrast, is content Aereo receives on its own antennas that is then forwarded to the user. So Roamio records content the user has already acquired in the first place, while Aereo records content the user has not yet acquired.
You may think this distinction doesn’t matter, but the fact is that the Supreme Court found it critical. And it seems to me that rather than pretending that liability turns on the length of the cable, Mike and others would be doing the services they care about a favor by pointing out that the cable length in fact doesn’t matter. If a cloud-based service was sued on the theory that it’s infringing because the cable is long, would Mike really get behind the plaintiff’s theory? I doubt it. He just plays the cable length card because he wants to make the decisions seem stupid. But I find it hard to believe that he really thinks the cable length thing is the law. It's not. And that's a good thing.
Looking for a fact that leads to your opinion because I'm not sure how you arrived at this.
Aereo sets up an antenna for you to pick up freely broadcast matials. Then it gives you access to essentially a box (basically the functional equivilent of the Roamio) that can record the material you tell it to (from the FREE broadcasts). Then it sends that information directly to you (not broadcast to everyone) over the internet so you can watch it on your TV (or potentially other) device.
What part of that makes it a cable system? How does that not apply to the Roamio TiVo box?
I feel like Professor Post, Mike, and you are just trying to rehash the same argument (i.e., that Aereo is just like a VCR) that the Court rejected in Aereo. But Aereo is not simply a VCR. It’s an integrated service where people can sign up to have content transmitted to them over the internet. You can’t just look at Roamio and say it’s the same as Aereo because it lets people record and playback content. You have to look at the content as well. Aereo is functionally equivalent to a cable system because it aggregates content and transmits it to members of the public from its centralized facilities. Roamio doesn’t do that.
As noted in the above 3 posts, you're talking about the length of the cord.
The Roamio box sends a signal to the TV just as much as the Aereo service does. If you call one a "transmission" and the other "not", then the only difference is the length of the cable. Both are sent from the unit to the TV. Both are controlled/selected by the user. Both are viewed only by the user (not sure if Aereo was multiple devices).
In short, everything is the same but the length of the cable. Not sure how anyone can spell it out better for you, but you contradicted yourself really well.
I said it’s a gross oversimplification to say that the cable length is all that matters, and that’s true. Yes, there is a transmission from the Roamio box to the television, but that is not a transmission from one place to another so the Transmit Clause is not implicated. Moreover, transmissions can be wireless such that there’s no cable length at all. And even when there is a transmission over a long cable, that doesn’t tell us whether the performance is public or private. You can have a private performance over a 10,000 mile long cable, and you can have a public performance with a wireless transmission that only goes 10,000 inches. The cable length, or even the existence of a cable, doesn’t tell us what we need to know to analysis the performance. And I simply disagree with you that Roamio, which supplies a set-top box that is functionally equivalent to a VCR, is doing the same thing as Aereo, which is functionally equivalent to a cable system.
If you were actually interested in a rational discussion you would maybe, you know, talk about some of those "significant differences."
But you're not.
I'm happy to discuss the differences (while, sadly, Mike is not). For starters, with Aereo, there is a transmission from Aereo's servers to the user. This transmission is a performance, and whether it's a public performance turns on the Transmit Clause. There is no similar transmission from Roamio's servers, and Roamio's liability would not be determined under the Transmit Clause. It's got nothing to do with the length of any cable.
You can have a cloud-based service on the other end of a very lengthy cable that is not publicly performing. You would think that Mike, in an effort to defend such services, would be careful to point out that liability does NOT turn on the length of the cable. Ironically, by arguing that it's the cable length that matters, he's condemning services that don't even infringe.
In short -- just as we've pointed out from the beginning -- the only basis on which Aereo might be infringing is that the copyright law is different if you have a short cable between the antenna and your screen (TiVo) or a long cable (Aereo). It seems somewhat ridiculous that the length of the cable could possibly change the analysis of a copyright case, but welcome to today's nonsensical copyright regime.
LOL! I love it when Mike plays the "length of the cord" card instead of, you know, actually engaging the actual law. There are significant differences between an independent set-top box like Roamio and an integrated web-based service like Aereo. Give me a break with the gross oversimplifications.
Firstly, the copyright of authors wasn't actually adjudged to be common law in Britain. In Donaldson v Beckett, the House of Lords specifically found that there wasn't a common law copyright. That was 14 years before Madison wrote Federalist Paper #43.
This isn’t relevant to the point I was making, but the Wikipedia article correctly notes that the majority of Lords found that there was in fact common law copyright (e.g., “‘Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same, in perpetuity, by the common law?’ According to Burrow's report, the judges answered this question affirmatively by seven to four.”) Whether the Statute of Anne preempts that common law copyright is a different matter.
Secondly, Madison wasn't precisely arguing for copyright. He was arguing that the Federal government should legislate copyright, rather than having copyright established on a state-by-state basis. In that same paper, he immediately goes on to suggest that the seat of the Federal government should be under Federal jurisdiction, rather than state. He's talking about separation of powers, not copyright.
You don’t think Madison’s statement that “[t]he utility of this power will scarcely be questioned” and that “[t]he public good fully coincides in both cases [i.e., copyright and patent] with the claims of individuals” shows that he was arguing for copyright? What about the fact that Madison wrote and introduced the first copyright statute in Virginia in the 1780s?
Thirdly, Madison didn't view copyright as a complement to free speech, he viewed it as a government-granted monopoly.
I don’t understand why you think those are mutually exclusive. It can be a government-granted monopoly that complements free speech. My point is that it’s not giving us the whole picture to say that Madison was “cautious” with copyright when, as you point out, he thought “[t]here can be no just objection to a temporary monopoly in these cases . . . .” He was certainly cautious about granting monopolies in general, but copyright was one monopoly he clearly supported.
Ownership of expression and freedom of expression are not complementary nor reconcilable.
That may be your opinion, but it is not an accurate description of the law--and we can all thank Professor Lessig for getting the Supreme Court to say so.
Madison cautiously approved of copyright, but I doubt that he suspected it would be used to chill free speech like his story 200 years later.
This notion that Madison was “cautious” of copyright is incomplete and hard to square with what he wrote in the Federalist Papers: “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.”
And this is the same Madison who, while on a committee under the Articles of Confederation, said: “[N]othing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius.”
It seems to me that Madison saw copyright and free speech as complementary.
On the post: TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length
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That said, you're still making the same argument that it's about cable length for me. Here's why:
Aereo set up a box for each person just like Roamio is doing. Each box ports only to 1 user just like Roamio is doing.
Your claim that "Aereo... tramsmits to the members of the public" is wrong in the way you use it. It transmits to 1 user, for 1 user and is no different in the logic of the design than the Roamio. Aereo never set it up so that the signal from each antenna would work any different than the Roamio box does. That's how they thought they got around the Cablevision ruling.
In other words, the signal from Aereo is just as public of a signal as the Roamio (unless it's broadcast, unencrypted, or some other way for a man in the middle to potentially piggyback on). Just because the signal from Aereo goes through the internet doesn't automatically make it public. I mean does my online banking go to the public? Same difference.
Technologically, other than the cable length (Aereo being remote, Roamio being in the house) there is no FUNCTIONAL difference between the 2 services. You still have yet to make an argument of anything but the cable length.
Thanks for the reply, and sorry for the delay in responding.
As the Court held in Aereo, the one-to-one thing doesn’t mean the performance is private. You also have to look at the relationship of the user to the content being transmitted. And this is why I think Mike’s cable length argument is silly. If liability turns on the length of the cable, many cloud-based storage services would be infringing. But they’re not. If I store an MP3 in the cloud and stream it back later, the performance that occurs when the content is transmitted is private because of my preexisting relationship to the content. This is so even if the cloud service is considered to be the one causing this performance.
The Court saw Aereo as providing more than just a piece of equipment (like a VCR) because it enables users to access content they have no preexisting relationship to. Like a cable system, it uses antennas to capture broadcasts and then retransmits those broadcasts to the public. Roamio does not use a centralized system where broadcasts are captured and retransmitted. And the content that the user records on Roamio is content the user has already acquired from the user’s own antenna. The content recorded with Aereo, by contrast, is content Aereo receives on its own antennas that is then forwarded to the user. So Roamio records content the user has already acquired in the first place, while Aereo records content the user has not yet acquired.
You may think this distinction doesn’t matter, but the fact is that the Supreme Court found it critical. And it seems to me that rather than pretending that liability turns on the length of the cable, Mike and others would be doing the services they care about a favor by pointing out that the cable length in fact doesn’t matter. If a cloud-based service was sued on the theory that it’s infringing because the cable is long, would Mike really get behind the plaintiff’s theory? I doubt it. He just plays the cable length card because he wants to make the decisions seem stupid. But I find it hard to believe that he really thinks the cable length thing is the law. It's not. And that's a good thing.
On the post: TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length
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And yet the Supreme Court held that Aereo publicly performs.
By the way, Aereo isn't even close to being "functionally equivalent" to a cable system.
And yet the Supreme Court held that Aereo performs because it is functionally equivalent to a cable system.
I'm hoping to keep this discussion to the actual law, not someone's wishful-thinking version of it.
On the post: TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length
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Aereo sets up an antenna for you to pick up freely broadcast matials. Then it gives you access to essentially a box (basically the functional equivilent of the Roamio) that can record the material you tell it to (from the FREE broadcasts). Then it sends that information directly to you (not broadcast to everyone) over the internet so you can watch it on your TV (or potentially other) device.
What part of that makes it a cable system? How does that not apply to the Roamio TiVo box?
I feel like Professor Post, Mike, and you are just trying to rehash the same argument (i.e., that Aereo is just like a VCR) that the Court rejected in Aereo. But Aereo is not simply a VCR. It’s an integrated service where people can sign up to have content transmitted to them over the internet. You can’t just look at Roamio and say it’s the same as Aereo because it lets people record and playback content. You have to look at the content as well. Aereo is functionally equivalent to a cable system because it aggregates content and transmits it to members of the public from its centralized facilities. Roamio doesn’t do that.
On the post: TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length
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The Roamio box sends a signal to the TV just as much as the Aereo service does. If you call one a "transmission" and the other "not", then the only difference is the length of the cable. Both are sent from the unit to the TV. Both are controlled/selected by the user. Both are viewed only by the user (not sure if Aereo was multiple devices).
In short, everything is the same but the length of the cable. Not sure how anyone can spell it out better for you, but you contradicted yourself really well.
I said it’s a gross oversimplification to say that the cable length is all that matters, and that’s true. Yes, there is a transmission from the Roamio box to the television, but that is not a transmission from one place to another so the Transmit Clause is not implicated. Moreover, transmissions can be wireless such that there’s no cable length at all. And even when there is a transmission over a long cable, that doesn’t tell us whether the performance is public or private. You can have a private performance over a 10,000 mile long cable, and you can have a public performance with a wireless transmission that only goes 10,000 inches. The cable length, or even the existence of a cable, doesn’t tell us what we need to know to analysis the performance. And I simply disagree with you that Roamio, which supplies a set-top box that is functionally equivalent to a VCR, is doing the same thing as Aereo, which is functionally equivalent to a cable system.
On the post: TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length
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But you're not.
I'm happy to discuss the differences (while, sadly, Mike is not). For starters, with Aereo, there is a transmission from Aereo's servers to the user. This transmission is a performance, and whether it's a public performance turns on the Transmit Clause. There is no similar transmission from Roamio's servers, and Roamio's liability would not be determined under the Transmit Clause. It's got nothing to do with the length of any cable.
You can have a cloud-based service on the other end of a very lengthy cable that is not publicly performing. You would think that Mike, in an effort to defend such services, would be careful to point out that liability does NOT turn on the length of the cable. Ironically, by arguing that it's the cable length that matters, he's condemning services that don't even infringe.
On the post: TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length
LOL! I love it when Mike plays the "length of the cord" card instead of, you know, actually engaging the actual law. There are significant differences between an independent set-top box like Roamio and an integrated web-based service like Aereo. Give me a break with the gross oversimplifications.
On the post: James Madison, Father Of The Constitution, 4th US President... And Fan Fiction Writer
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This isn’t relevant to the point I was making, but the Wikipedia article correctly notes that the majority of Lords found that there was in fact common law copyright (e.g., “‘Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same, in perpetuity, by the common law?’ According to Burrow's report, the judges answered this question affirmatively by seven to four.”) Whether the Statute of Anne preempts that common law copyright is a different matter.
Secondly, Madison wasn't precisely arguing for copyright. He was arguing that the Federal government should legislate copyright, rather than having copyright established on a state-by-state basis. In that same paper, he immediately goes on to suggest that the seat of the Federal government should be under Federal jurisdiction, rather than state. He's talking about separation of powers, not copyright.
You don’t think Madison’s statement that “[t]he utility of this power will scarcely be questioned” and that “[t]he public good fully coincides in both cases [i.e., copyright and patent] with the claims of individuals” shows that he was arguing for copyright? What about the fact that Madison wrote and introduced the first copyright statute in Virginia in the 1780s?
Thirdly, Madison didn't view copyright as a complement to free speech, he viewed it as a government-granted monopoly.
I don’t understand why you think those are mutually exclusive. It can be a government-granted monopoly that complements free speech. My point is that it’s not giving us the whole picture to say that Madison was “cautious” with copyright when, as you point out, he thought “[t]here can be no just objection to a temporary monopoly in these cases . . . .” He was certainly cautious about granting monopolies in general, but copyright was one monopoly he clearly supported.
On the post: James Madison, Father Of The Constitution, 4th US President... And Fan Fiction Writer
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That may be your opinion, but it is not an accurate description of the law--and we can all thank Professor Lessig for getting the Supreme Court to say so.
On the post: James Madison, Father Of The Constitution, 4th US President... And Fan Fiction Writer
This notion that Madison was “cautious” of copyright is incomplete and hard to square with what he wrote in the Federalist Papers: “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.”
And this is the same Madison who, while on a committee under the Articles of Confederation, said: “[N]othing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius.”
It seems to me that Madison saw copyright and free speech as complementary.
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