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Comment by rayiner | Hacker News Reader

As a lawyer, it was the majority's approach that bothered me. Simply, this hyper-technical approach makes for bad law. The court would've been better served here just saying it was fair use because the ads were preserved and the streams contained content that could be watched for free over the air anyway. Throw in the additional public consideration in this case, which is that the content owners are taking advantage of public airwaves to air this content in the first place, and the need to perpetuate this bizarre loophole disappears.

The problem here is: what does "public performance" mean in the context of internet broadcasts? Cablevision just covers that consideration with mud. The answer is probably: the distinction of "public performance" is completely meaningless when talking about internet streams.

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As a law student, I think both of these are defensible positions, and neither approach bothers me. I like the result as a policy matter, but don't know enough about the precedents or the Copyright Act to comment on the result as a legal matter.

TLDR of the opinion for the rest of HN:

"Public performances" are subject to copyright protection. The Copyright Act says: "To perform or display a work 'publicly' means to transmit or otherwise communicate a performance or display of the work to a [public place] or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." That last part was written specifically so that cable companies are engaged in public performances (three boos for Congressional idiots who write laws specific to one technological era and then don't update them).

The majority says because that sentence talks about public transmission, it implies there's such a thing as private transmission. And transmission of a unique server copy to a specific customer is a private transmission. (See pp. 29-30.) They think this case is about a "rooftop antenna [that] is rented from Aereo and its signals transmitted over the internet."

The dissenter says that "public performance" includes any stream whose fundamental purpose is to retransmit live TV to a large audience. And that's what he thinks Aereo is doing. (See pp. 49-50.) He thinks Aereo is functionally doing the same thing as a cable company, and that "Congress made clear its intent to [cover] ... 'all conceivable forms and combinations of wires and wireless communications media,'" so it doesn't matter whether there's a private copy on the server or not.

(Link to opinion: http://www.ca2.uscourts.gov/decisions/isysquery/82dcbc3a-986...)

What I find interesting is there is precedent that doing the same thing with DVD players is not legal.

"doing the same thing with DVD players" implies to me that you would have a set of large warehouses containing stripped down DVD players, DVDs, and some automated mechanism of loading and unloading DVDs into players which ensures that a given DVD is only watched by a single customer at a time. Would this be illegal?

Would this be illegal?

Yes. http://www.techdirt.com/articles/20110802/02374615353/court-...

I wasn't aware of this, but I don't agree with your assertion that it is illegal. A district court judge wrote what appears to be a very poorly considered decision in the process of issuing an injunction, and Zediva didn't have the resources to keep fighting. I expect that this would have been reversed on appeal because this service was almost exactly the same as that provided by Netflix when they mail you a DVD; the only difference is that you take physical possession of the disk for a period of time with Netflix and you did not with Zediva. In neither case was the performance "public" in the sense that unrelated parties were permitted to view the video at the same time as the renter.

As a non-lawyer, the fact that we are still trying to halt the progress of technology in the name of protecting anachronistic business models is the most troubling part. The problem is not what a "public performance" means; the problem is that we are still thinking in such terms.

Painting these debates as "trying to halt the progress of technology" is utterly absurd. Nobody is going after Aero for setting up a television streaming service. People are going after Aero for setting up a television streaming service with their content.

The problem lies with believing that you're entitled to a successful, non-threatened business model. The problem lies with believing that the law should be changed primarily to protect your business model.

Sorry, but just because something is "your" content doesn't mean you should be guaranteed to make money off of it, or control every aspect of it.

For example, if I set up a stand on a street corner that creates an amazing aromas, it would not suddenly become my right to charge passersby for smelling these aromas, even though they are "mine". Rather than trying to get the law changed to guarantee I make money, I should instead modify my business model to one that doesn't suck.

> The problem lies with believing that you're entitled to a successful, non-threatened business model. The problem lies with believing that the law should be changed primarily to protect your business model.

Nobody is entitled to a non-threatened business model. At the same time, Congress is entitled to limit unfair competition and free-riding off peoples' work, and in this case it has seen fit to do so. That's the crucial distinction that anti-copyright folks ignore. This isn't just about protecting a business model from technological change. It's about protecting a business model against a different business model: profiting from selling content you didn't create and didn't pay for.

It would be one thing if nobody wanted to watch big-budget Hollywood movies anymore, and MPAA were lobbying for laws to shut down P2P and Youtube so indie content producers couldn't distribute the movies that people did want to watch. But that's not what's happening here. Demand for Hollywood movies has never been higher, and despite a total lack of legal roadblocks, indie content has not become popular hardly at all.

What's happening is that companies like Youtube and Aereo, etc, have figured out there is profit to be made by being middle-men between the big-budget Hollywood content people demand and the consumers. Ideally, for them, there would be no copyright so they could get content for free attract viewers to peddle their advertising to.

It's one thing to prop up your business model against technological obsolescence that eliminates demand for your product. It's another thing to protect your rights against people free-riding on your creations, creations for which demand is higher than ever.

> For example, if I set up a stand on a street corner that creates an amazing aromas, it would not suddenly become my right to charge passersby for smelling these aromas, even though they are "mine".

But could you sue someone for putting up a big fan to blow the aroma into the air and charging people to stand in front?

The purpose of copyright and patent law in the US (as stated by the Constitution) is to promote the progress of the arts and sciences by granting a temporary limited monopoly to creators. While I don't disagree with the sentiment, things have gotten wildly out of hand in the past few centuries.

I get it. People make content, and they want their rightful monopolies to be protected from people who would copy and sell it. That's fine. But attacking the rights of those who are not copying or profiting from your content simply because the new method they're using to access it doesn't line your pockets with money is going too far. At that point you're going after all competition, rather than unfair competition.

You have no guaranteed right to a lucrative business model. You have no guaranteed right the control any and all actions of those with access to your content. The only thing you should have is the limited monopoly you've been given, and if that isn't enough to protect your business against the the onslaught of new technologies then so be it. (I should point out that I think the length of the monopolies themselves has gone overboard, but that's an argument for another day.)

> But could you sue someone for putting up a big fan to blow the aroma into the air and charging people to stand in front?

No, I don't think I should be able to sue. It's my own horrible business decision to release my aromas into the public air where everyone can access them. If I were a more astute businessman, I would keep my aromas in a privately-owned enclosure where I could create the rules and charge admission to boot.

I don't see how it's the government's place to step in and create laws that curtail the public's right to use the air as it pleases for no other purpose than to ensure that my crappy business model is lucrative.

> The purpose of copyright and patent law in the US (as stated by the Constitution) is to promote the progress of the arts and sciences by granting a temporary limited monopoly to creators.

Just because that's what the constitution says, doesn't mean that that's the real purpose.

Well, but it does mean that judges can invalidate (or not apply) copyright laws if they diverge sufficiently from that 'official' purpose.

Even if both the industry and congress want and intend other purposes, the constitution allows copyrights to exist only if/while they (at least a bit) also try "to promote the progress of the arts and sciences".

Copyright is an state enforced monopoly, created in 18th century for 18th century society and their goals. Nowhere does it even try to justify such monopoly by wordings of government intervention to prevent unfair competition or free-riding. In the several hundred years since them, no change to the basic fundamentals of the law has had any change, nor has any justification been added.

Most anti-copyright folks such as you describe them would welcome stated goals. Preventing unfair competition by state intervention is a fine goal. Lets do that, but then lets also apply 21st century governmental procedure rather than 18th century ones. The steps are quite easy: First you do a cost-benefit analyses such as determining cost and benefit. You ask what the cost to society is. Then you ask questions like how much protections vs how much costs. Is 3 years enough to prevent 90% of the unfair competition? Would 2 more years make that number reach 99%? Maybe a whole 10 years for special products needing special state attention?

Cost-benefit analyses. A tool made in the 19th century, was the tool that made 20th century government, and the only two laws not still using it is copyright and patent law. There is nothing to justify such bad use of state power to intervene in the market.

You say to do the cost benefit analysis like its easy - but in reality its not. Nothing is so clear cut and dry.

How do you count "unfair competition"? how do you define "special products"? How do you even count the revenue of a hypothetical work before its even made?

This "entitlement to not be threatened" trope is based on the fallacy that all threats are the same.

The neighborhood coffee shop is not entitled to prevent Starbucks from opening across the street. It is entitled to protection from people throwing bricks through its windows.

Similarly: movie studios are not entitled to use their market power to prevent people from recruiting from the vast population of talented underutilized actors to make content under more consumer-friendly terms. But they are entitled to protection from other companies that would take the content they paid to generate to slap unauthorized advertising on it.

If I'm reading you right, I don't disagree with anything you're saying, but I don't think it refutes my point. Yes, there exist situations in which competition is unfair. This, however, is not one of them. This is a textbook case of fair competition being attacked simply because it's competition. It's an abuse of copyright law.

Ouch, fair enough: you were talking about Aereo in particular, and not the whole content industry in general. Sorry for jumping to conclusions.

just because something is "your" content doesn't mean you should be guaranteed to make money off of it

So you'd be cool if someone ripped off your source code at siasto.com and started charging for the service? Good to know!

For example, if I set up a stand on a street corner that creates an amazing aromas, it would not suddenly become my right to charge passersby for smelling these aromas, even though they are "mine".

/facepalm

That's not how analogies work - you're supposed to invoke a prallel situation as I did above, not a completely different one. If you play your original music compositions on the street corner you can't just demand money for it even though pasers-by may be consuming and enjoying it. But if I copy your work and start charging people to listen to/inhale it, then you're infringing.

Rather than trying to get the law changed to guarantee I make money, I should instead modify my business model to one that doesn't suck.

What you actually need is one that doesn't blow.

> So you'd be cool if someone ripped off your source code at siasto.com and started charging for the service? Good to know!

Invalid analogy. Siasto does not sell or distribute its source code. Quite the opposite: our code is locked away on a privately-owned server. You'd have to illegally force your way into this server to access the code. What we sell is a service that happens to depend on this code.

And no, I would have no problem whatsoever if you cloned our service and attempted to sell it to others. In a general sense, we certainly aren't the only team collaboration software out there. And in a specific sense, we certainly didn't pioneer the vast majority of the visual interactions that define our service.

> But if I copy your work and start charging people to listen to/inhale it, then you're infringing.

Yes, but the company in question is not making copies. Hence the separate antennae and storage for each customer.

> What you actually need is one that doesn't blow.

:-D

Invalid analogy. Siasto does not sell or distribute its source code. Quite the opposite: our code is locked away on a privately-owned server.

Not at all. An employee of yours might decide to copy it, you might accidentally expose it in the future, or whatever. It seems you're making the argument that only what you can keep secret is yours.

But to align it more easily with reality, are you saying you'd be cool if I started copying your blog posts or the design of your site, which are published to the world?

I would have no problem whatsoever if you cloned our service and attempted to sell it to others

Assuming I wanted to do that, are you saying you'd be completely OK with it being copied down to the last degree? I find this hard to believe.

Yes, but the company in question is not making copies. Hence the separate antennae and storage for each customer.

I don't have a major issue with this particular legal decision. I'm just taking issue with your notion that being the originator of content provides you with few or no rights over it. I really don't see any similarity with your street-corner analogy.

I'm glad you got the pun though :-)

> Not at all. An employee of yours might decide to copy it, you might accidentally expose it in the future, or whatever.

Employees (or anyone else for that matter) can be held liable for breaking contracts. And if my own negligence exposed my hidden code to the world, then so be it.

> It seems you're making the argument that only what you can keep secret is yours. But to align it more easily with reality, are you saying you'd be cool if I started copying your blog posts or the design of your site, which are published to the world?

Sure, if you're willing to do all that engineering yourself, go for it. I don't think it will pay off for you. (In tech it's better to differentiate.) Nor do I think will hurt my company. (Au contraire, it's likely an HNer will discover the copying and post about it, resulting in positive publicity for Siasto.)

I do not sell HTML, CSS, or JavaScript. I do not sell blog posts. I'm not in the content business, because I think it's a shitty business to be in.

> I don't have a major issue with this particular legal decision. I'm just taking issue with your notion that being the originator of content provides you with few or no rights over it. I really don't see any similarity with your street-corner analogy.

Being the originator of content provides you with a limited monopoly over it. It should not, however, make you all-powerful. As long as I'm not engaging in unfair competition (e.g. copying and selling your content en masse), you shouldn't get to tell me what I can and can't do with it. If I want to hold readings of your book in my home, or distribute free copies of your movies to my friends, then I should be able to do that. And if you don't like the fact that this makes your business less profitable, then get a better business model.

That's not too much to ask. Live performances make tons of money. So do movie theaters. And individual paintings by artists. Some forms of content production can be lucrative. I just don't like my rights as an individual being unduly curtailed simply to turn someone's poor business model into a good one.

I'm responding to you as an example of a certain line of thought that limits on copying are somehow infringing on your "right" to do as you wish with copyable content.

Where does this right come from? People have some intuition about stealing physical things, but many areas of law involve intangible entities. In your example of suing an employee for releasing source code in violation of an agreement, you are using law to effect an outcome that is every bit as abstracted as copyright law.

There is also an aspect of arbitrariness to most law that can be annoying but it serves a function.

I generally agree with Jefferson's ideas about the freedom of information and ideas: http://movingtofreedom.org/2006/10/06/thomas-jefferson-on-pa...

I don't think that a law is unjust simply because it deals with intangibles. I simply think that copyright/patent law lend themselves easily to abuse.

I should have said 'then I'm infringing,' obviously.

No, this is about killing modern technology. The broadcasters want to prevent the Internet from becoming a distribution system for entertainment, because once that happens there will be no profit in broadcasting. They are fighting tooth and nail to ensure that the only way for entertainment to be distributed over the Internet is for the Internet to become a fancy cable TV system.

Aereo's technology is not standalone. They are using the Internet to do exactly what the Internet is supposed to be used for, which is the sharing of computing resources. This is a debate about whether or not that kind of technology is acceptable, not about whether or not antenna arrays are acceptable. There would have been no antenna arrays if the copyright lobbyists had been shown the door; we got to this point because outdated industries want to stop technological progress that threatens their antiquated business models.

> The broadcasters want to prevent the Internet from becoming a distribution system for entertainment, because once that happens there will be no profit in broadcasting.

The internet is already a distribution system for entertainment. I don't see the MPAA/RIAA suing Youtube because people are posting funny videos of their cat on there. They're suing to keep the internet from being a distribution system for the entertainment they create.

> Aereo's technology is not standalone. They are using the Internet to do exactly what the Internet is supposed to be used for, which is the sharing of computing resources.

Aereo didn't get sued for its technology. If they had been broadcasting their own content nobody would've cared.

Look at it another way: where is all the wonderful Kickstarter-funded, Creative Commons-licensed, torrent-seeded content that everyone is just dying to watch? There are zero legal hurdles to replacing the existing content industry if you can come up with a product people actually want.

>I don't see the MPAA/RIAA suing Youtube because people are posting funny videos of their cat on there.

So you've never seen this image before?

http://blog.asmallorange.com/wp-content/uploads/youtube-copy...

If YouTube weren't afraid of being sued by the MPAA, RIAA, or TV producers, why would they remove allegedly infringing content and replace it with these claim notices?

The underlying issue is that broadcasters are creating an artificial scarcity to drive demand. I find that to be more unethical than exploiting a loophole.

An artificial scarcity of what? The country is literally flooded with broadcast TV.

Which makes the whole "copyright" argument in this case even more specious, IMAO. You're broadcasting your content, for free, into the air, for anyone who cares to listen. What gives the broadcaster the right to dictate where someone has to be physically located in order to receive the broadcast?

Exactly. What's next? Going after makers of antennas that allow you to receive broadcasts from too far away?

>An artificial scarcity of what?

scarcity of option to format change, timeshifts, rebroadcasting, and choice.

Broadcast tv (discounting DVR's) has set times for set programs, and i do not want that - it was only recently that recording broadcast TV was made legal in australia (can't recall how long ago off top of my head).

The only way to maintain exclusive ownership of "their" content is to lock it in a vault and keep it out of the public culture.

Eventually rightsholders, legislators, judges, and even attorneys will come to understand that simple truth.

So might makes right? I don't get to maintain exclusive ownership of my car if I don't keep it locked in a vault?

Might has always made right, always. From the American Revolutionary War to the Arab Spring.

In modern society, the laws of the land are enforced under physical duress by the police (and sometimes military). If you break a law, the might of the nation will physically detain you and lock you in a room for years, or even kill you outright, depending on the conditions of the violation.

The question is, who's might makes right - does 'society', in control of the police and the 'might' side with 'culture' or 'business' in these cases?

I for one would not hesitate to download your car. Better keep it locked up.

That's an interesting consideration, and it's worth thinking through. What happens when it does become possible to download and print cars? Who will still design cars if designs are not protectable? Hobbyists? If that's the case, will they be any good? You can point to top-notch open source software, but so much of it became really good only because some company figured out how to monetize it. Maybe some company will figure out how to monetize digital cars without charging for the designs. It'll probably be worse than just paying for the designs (e.g. advertising). Or, maybe nobody will figure out how to monetize it, like open source games, and the results will be crap.

And even if hobbyists do design say sports coupes, will they also design say minivans? If they don't, that's a market failure--there is a demand for minivans, and people capable of designing minivans, but no way to monetize the designs hence no minivans.

I do not think that 3d printing is really the game-changer that people think that it is. You can already make things at home, even copying industrial designs. For example, lots of people seem to be concerned about the implications of printable guns, but making your own guns can already be done with a surprisingly modest collection of machining tools, and done better with those tools to boot. Much more accessible and popular, you can copy clothing patterns with modest sewing skills and equipment that you can pick up at nearly any yardsale. (In fact, if I am not mistaken, DRM has already reared its ugly head in some particular niches of fashion...). I would even go so far as to say that printing your own car will be unpopular/uncommon for the exact same reasons that sewing your own clothing is currently unpopular/uncommon (it will be labor intensive, take a lot of space, and acquiring the correct materials will be a chore).

My hope would be that everyone keeps a level head about 3d printing and thinks before going nuclear^W legal.

In answer to your question "What happens when it does become possible to download and print cars?": barring hyperactive lawyers overreacting, probably very little of any consequence.

current amature manufacturing tech is way below par when copmpared with industrial manufacturing tech.

When downloading digital media, the reproduction is perfect, and takes no effort. Current home kits for making things are far from perfect, and takes a lot more effort in comparison to digital media reproduction. This is why 3D printing hasn't really taken off. When the day you can recreate a perfect car/bike/toaster like the one you buy from a shop, printed at home with a click of a button, then you'd see the car manufacturers sueing people for laser scanning their model/designs and uploading it - just the same as the media conglomerates doing so right now.

When the masses can perform what used to be the domain of the specialists, the specialists would necessarily have to disappear.

Home production will never be as sophisticated as what can be achieved in a factory. Anything that can be done in a home can also be done in a factory, plus some.

Lets think about this though, how are you going to print a vulcanized rubber tire? How are you going to print an engine block, a car body, and a windshield?

Okay okay, lets say that in some sort of manufacturing singularity we can print all of those things... cars are still big, and this printer is going to be big as well. Where do we do this? In my garage? Well, I don't have a garage, I have a shared parking garage, but lets say I had a two car garage. One space for the printer, one space for the car. Printer prints all of my parts, I assemble (okay, perhaps I have robots (printed? themselves robot assembled?) strong enough to assemble it), fill it with fluids, and drive off into the sunset. Was all of that equipment used to print and assemble it generic? Do I have other uses for car-building sized printers and robots, or is that just wasted space in my garage now? Do I grind all that stuff down into printer food? How long does that take? How long did that stuff take to print in the first place? How long did my car take to print? Hell, where did I even get the material to build all of that stuff in the first place, and where do I put the printer food when I'm done? Do I order up a few tons of steel and have them come back a few weeks later to pick up the barrels of steel chips when I'm done?

This all seems pretty intensive just for one car, but there are some obvious improvements that can be made. For instance, instead of doing all of that work for just one car, I could print out two cars instead. Setup/demo time would be the same, so it would be more efficient. Now I don't need two cars, so maybe I could sell one of them to my non-hypothetical self who doesn't have a two car garage in the first place. Hell, we can even do better than that still; my neighbor Joey doesn't really feel like clearing out his garage (his printed model trainset is in the way), so I'll print and sell him a car too. In fact, maybe I'll print one for the whole neighborhood... maybe I'll rent out some larger space than my spare garage space to do this, get a few production lines going in parallel...

Oh shit, I just re-invented the wheel.

3d printers will take off, but they will nevertheless not represent a threat to the concept of centralized production. Only profoundly incompetent companies will be threatened. Any other company that resorts to lawyers will be overreacting.

The question is how much capital is required to start. At the moment, you need to either be a huge corporation or (like Tesla) market yourself well and get a ton of investors to start making cars.

If the price of building a small factory dropped enough, maybe your local library/school would have an open factory space where people go to print custom cars.

If you don't want a custom car, it'd probably be cheaper to buy one though (partially because the availability of such printing would force manufacturers to drop prices).

> You can point to top-notch open source software, but so much of it became really good only because some company figured out how to monetize it. Maybe some company will figure out how to monetize digital cars without charging for the designs. It'll probably be worse than just paying for the designs (e.g. advertising).

So, you'd rather pay for Unix than be stuck with the way companies of monetized Linux? It's not always about monetizing the product as it is about monetizing the complementary service or product.

I would also download a car, especially if I had a printer big enough to make use of it.

I don't get to maintain exclusive ownership of my car if I don't keep it locked in a vault?

Sigh. Yes, and nuclear weapons are also a useful subject to raise when arguing about gun control.

Property rights don't apply to other people's property, apparently.

These "property rights" you speak of are not natural rights. They were spun from whole cloth very recently. They have changed before, and they will change again.

What we're seeing here is the social pressure that will drive that change, for better or worse.

There is no such thing as "natural rights." Rights are utilitarian, or otherwise based on the morality of the society (relative, not absolute). Property is certainly spun from whole cloth. Animals after all do not have property rights, merely possession.

As for copyright being recent: there have been protections against copying creative works pretty much as long as it's been possible to copy creative works. In Britain, within 50 years or so of printing presses proliferating in the country, printing became the subject of government-granted monopolies (only those with a charter could print). Copyright was introduced in surprisingly recognizable form with the Statute of Anne in 1710.

"there have been protections against copying creative works pretty much as long as it's been possible to copy creative works"

Funny how in ancient times, there were cities that required that any books brought into the city be copied and stored in the library. It was because of the copying activities of monks and scholars that we have man ancient works, and nobody complained about them copying things.

Restrictions on copying entered the picture because of censorship. You talk about the pre-Statute of Anne copying restrictions as though they had anything to do with the creators of written works; those restrictions existed solely for the purpose of censoring authors. The side of effect of those approaches in English law was the creation of a large, powerful publishing monopoly, which is how the Statute of Anne was created in the first place (the lobbying effort was led by and almost entirely consisted of the businesses that had benefited from the previous system).

As for copyright being recent: there have been protections against copying creative works pretty much as long as it's been possible to copy creative works.

Point for discussion: if life has a purpose at all, then that purpose can be phrased as "Making copies."

If only people agreed on what natural rights were, we wouldn't have any disputes. I know people that think that if you leave a house sitting empty, they have a natural right to move in and begin living there. It'rs real easy to invoke natural rights when you end up as the beneficiary.

As for recently, since the creation of the cosntitution creators have been granted copyrights 'for limited times'; No matter how much you hate the fact that Disney is still claiming copyright on materials almost a century old, retransmission of TV happens over such a short timeframe that it surely falls within a reasonable definition of 'limited times.'

Is it a television streaming service or a format shifting service? If you take the line that it is merely format shifting, then what stake does a copyright holder have in that argument?

If I get it correctly (not being an US citizen), they are streaming something that already got over the air for free in one area and streaming it to more areas, right?

In that case, the Big Owners are already giving it away for free in New York and nobody gets hurt, if people somewhere else see it for money, right?

If I understood correctly from the last time I read about "fair use", the problem is that with pleading fair use you are admitting to infringing copyright but hope it's covered by fair use and a judge agrees. I guess that would be weakening your position from the onset.

We're going to have bad law that treats bits as physical objects, hyper-technical workarounds and loopholes until we, as voters, confront the reality that content providers are now "charging for smells," and force Congress to do something about it. http://www.paulgraham.com/property.html

The mistake here is thinking that property rights only extends to physical bits. Property rights have extended to non-physical (e.g. the right to do things under a contract) things for literally hundreds of years.

That is false. Copyright is not an property, and does not have property rights.

Calling copyright a property is an simplification. Copyright is an state enforced monopoly, given as a privilege by the state to the author. Privileges is not properties, and as thus have no property rights attached to them.

Copyright is not different from any other state given privilege. Some people has got permissions to sell drugs, produce weapons or export particular products to specific countries. Neither of those privileges are "rights".

Of course, we can turn this around and say that all property right is privileges given by the state (as they are the only one enforcing the law). However, this kind of thinking would then require one to accept that property, like that car parked in the house, is property owned by the state and given as an privilege to someone they define as an owner. It leads to a place where we are better off defining physical objects as different compared to privileges that we receive from the state.

> However, this kind of thinking would then require one to accept that property, like that car parked in the house, is property owned by the state and given as an privilege to someone they define as an owner.

This is a failure of logic. Even in the absense of a government, you would own your car--but you would have to personally defend that ownership at all times. The privilege that the state grants is security in your ownership: external protection from uncompensated use or taking. This is how intellectual property rights are analogous to other property rights. The government does not create or own the content; what they grant is protection from uncompensated use or taking of the content.

Property rights obviously extend to non-physical and abstract things, that's what "intellectual property" means.

The problem, which pg explains in the essay that I linked, is that technology has made it no longer practical to treat information (aka a particular stream of bytes) as a piece of private property that you can sell copies of, because copying and distributing it is now almost free. "The record labels and movie studios used to distribute what they made like air shipped through tubes on a moon base. But with the arrival of networks, it's as if we've moved to a planet with a breathable atmosphere. Data moves like smells now."

But in order to protect their profits, "The RIAA and MPAA would make us breathe through tubes if they could." At this point, viewing content through cable is becoming the equivalent of "breathing through tubes." Aereo's workaround is basically a way to say "Look, we are breathing through tubes, the tubes are just invisible!" Very clever.

Meh. Just because it is easy to commit copyright infringement due to the increasing presence of highspeed internet doesn't mean that it should now just become legal to download your entertainment when you want, where you want, and for exactly how much you want.

Why is "copyright infringement" even a thing, though? What is sacred about copyrights?

And what value is the owner of a media copyright actually providing to me anymore? They used to add value by distributing media, but now the media is obsolete because technology has given us faster, cheaper, and easier ways to share digital content.

The other thing these companies do is market the content and talent. But "marketing" is not a product, it has no value to the consumer. Their advertising even has negative value because it wastes my time--viewing it is another price that I pay in order to enjoy the content.

So if the copyright-owning companies don't have a value-add, why should I pay them for anything? Because they asked nicely? No, the only conceivable reason to do so is because the law says I have to. And why does the law say I have to? Because those companies wrote the law.

The law certainly isn't there to protect artists. Artists will always make art, regardless of whether others are able to buy exclusive legal rights to sell their art, or not. And the artists get a pitifully small slice of copy sales anyway.

> So if the copyright-owning companies don't have a value-add

its not true that they don't value add; its just that their value adding happens once - the cost of production is borne by media companies, and they assume the risk of not making back their investment money. The value they created then is the possibility of a good work being created.

However, asking to be paid continuously for the right to copy the work even after the cost has been repaid to create it is wrong (but this is what copyright law dictates).

Under the old system, artists are commissioned (by the state, or the wealthy) to create a work, which is then freely available to all (granted, a painting can't be so easily copied back then...). I say as technology improves, we need to change to that system again.

When artist(s) want to create a work and want to be sure to be paid accordingly, they first need to solicit the money (including their living/salary/costs) from the general public, and once their costs are met, they produce the artwork. Those who have sponsored would then have full work, but they cannot enforce copyright over any copies made, including copies they themselves distribute. This way, the masses who didn't pay benefit from those who did, and the artists got paid their share (and upfront too). No longer will there exist rent seeking by middlemen for owning the "right to copy".

>its not true that they don't value add; its just that their value adding happens once - the cost of production is borne by media companies, and they assume the risk of not making back their investment money. The value they created then is the possibility of a good work being created.

Investment is not a value-adding activity. When you invest, others' value-adding is what makes your investment grow. The value-adders are the people who take your capital and use it to make something of greater value than the principal amount you invested.

You're onto something when you mention commissioning works of art, though. Currently the motivation for companies to invest in the production of art is the ROI they can get from (exclusively) selling copies of the art, as guaranteed by copyrights. If copyrights are technologically obsolete because copying is now virtually free, then we as a society do need to find a new way to finance the creation of large-scale, expensive works of art--if we still want to enjoy that type of entertainment, that is.

> Under the old system, artists are commissioned (by the state, or the wealthy) to create a work, which is then freely available to all (granted, a painting can't be so easily copied back then...). I say as technology improves, we need to change to that system again.

Most art created under the patronage system was not freely available to all--usually the exact opposite, actually.

The only reason you are even aware of art created under the patronage system is because copyright has since made it economically viable to distribute at low cost. You can download a performance of a Mozart composition for a few bucks on iTunes--a tiny percentage of your wealth. Under the patronage system only a few thousand wealthy people would ever hear these pieces of music, because you needed to be physically present at a performance put on by the patron.

Your argument begs the question many are raising on this thread. What is stopping anyone from creating content and giving it away? Nothing. It turns out that the existing copyright laws are integral to the process of getting the huge resources together to create high quality content.

Content is not like air, and arguably limiting access to content through "artificial" means harms no one as these methods do not preclude the distribution of other content.

On the other hand, if there is a worry of harm to the public of having an under supply of sufficiently awesome content, property rights are an established method of ensuring this production.

Property rights obviously don't extend to non-physical and abstract things, but there are some enough analogies between property law and 1)copyright 2)patent 3)trademark laws to label them as "intellectual property" laws - i.e., something similar to property laws but not actual property laws.

when thinking about intellectual property, i don't like to lump copyright, patent and trademark laws under one umbrella.

They are totally different, and only cloud the thinking.

Even as a non-lawyer, to my knowledge a judge can not determine something to be fair-use if the defendant don't raise such claim. If the defendant is claiming to be a neutral intermediate between the end-user and the broadcaster, the court has to decide a direct answer to such claim. Everything else is out of scope.

If "public performance" should have an effect in distinguishing a distributor from an neutral intermediate could had be an interesting question, but I suspect the answer would be less so. Without a change in the law, "public performance" is either going to be a very dated phrase and thus non-inclusing, or something that means everything that a third-party might see (such as any packet sent over the public network called the Internet).

"...it was fair use because the ads were preserved..."

Since when does fair use require the preservation of ads or any specific portion of the content? Your argument dilutes the meaning and intent of fair use. Even the matter of being free or not has no bearing. The majority wisely avoided this area and fundamentally upheld the fair use rights of the users. The dissenting opinion confuses the issue by discussing licensing agreements, even going so far as to suggest fair use is somehow illegal.

"Since when does fair use require the preservation of ads or any specific portion of the content? "

When "the effect of the use upon the potential market for or value of the copyrighted work." became a factor that must be considered in fair use?

While the 4 factors were not meant to be all-inclusive, there's a great law review article that shows that something like 99% of court decisions only ever consider those factors

> the ads were preserved

Wait. Whaaaat??? The content producers are getting their shows time-shifted for free with commercials, so more people will watch the commercials than otherwise would have been able to. Why are they even suing??? They should be sending Aereo flowers!!

(I know, a significant fraction of DVR users skip the commercials. But hasn't the number been shown to be around half, or less? I always skip commercials with the TiVo, but my wife never bothers. I figure that's probably roughly representative of the population.)

Accountants have been utilising loopholes for decades. I would be surprised if the dissenting judge himself hasn't done so to reduce his tax bill.

I'd like what you say about fair use to be true, but why would the court volunteer its opinion if the technicalities are already sufficient permission for Aereo? Can they do that? An "... and even if ..." coda?

Do the two of you ever write, colloquially, "IANAL", and then you're like "oh, wait..."

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