

New Content-Delivery Tech Should Be Presumed Illegal, Says Former Copyright Boss - cwan
http://yro.slashdot.org/story/12/09/29/228228/new-content-delivery-tech-should-be-presumed-illegal-says-former-copyright-boss

======
tptacek
We are now getting misleading Techdirt stories secondhand through Slashdot.
It's interesting to see how far this game of telephone might go.

The "former copyright boss" is saying nothing of the sort. Here's what's
actually happening:

Aereo is a company that streams NY broadcast TV over the Internet, capturing
the broadcast signals and proxying them over IP to users. They are,
unsurprisingly, being sued by every NYC television company, including PBS,
because their product repackages broadcast TV in a product that lets users
skip ads by default.

As I understand it, the suit is early days. But as is typical in cases like
this, the content producers moved for a preliminary injunction to shut Aereo
down while the case runs. The trial court refused, and so the content
producers appealed.

Ralph Oman, who stopped working for the government before the dawn of the
commercial Internet, filed an amicus in the content industry's appeals request
to impose an injunction on Aereo.

Techdirt read Oman's amicus and reported sentences in the brief taken out of
context. Techdirt's reading of Oman's amicus doesn't even make sense; the
courts dealing with this case have no ability to create a "guilty until proven
innocent" standard, nor can they require that technology produces consult
Congress before launching products.

Oman was making an inside baseball argument to the court hearing the case. One
element that recurs in all complex policy cases: how do judges resolve the
(often contrary) forces of precedent, Constitutional principle, and the
statutes enacted by legislatures. What Oman is arguing is not that the judge
should apply some new restrictive rule on technology; rather, he's arguing
that should the judge refuse an injunction on such a clear-cut case (his
sentiment, not mine), that judge would in effect be creating a new policy of
exempting technology companies from vicarious liability out of whole cloth,
ignoring both precedent (thus his citation to a case where copy shop owners
had been held liable for misuse of their property) and statute.

Obviously, Oman is a copyright hawk. I'm "conservative" as copyright goes, and
even I don't think Oman is making a strong argument. This is obviously a very
"leftist" forum, but that doesn't free you to make up entirely new and
ridiculous arguments and stuff them into some random guy's mouth to create a
straw man.

Finally, as straw men go, this is a pretty feeble one. This guy doesn't matter
at all. He stopped managing copyright policy before the advent of CU-SeeMe.

~~~
ChuckMcM
_"We are now getting misleading Techdirt stories secondhand through Slashdot.
It's interesting to see how far this game of telephone might go."_

You know when I was watching President Obama's cover of the hit single "Call
me maybe" [1] I was thinking the same thing.

Kidding aside though, the two things that the Youtube spoof and this have in
common are taking snippets of actual "stuff" and mashing them together into
something that the person making the mashup finds useful/amusing/entertaining.
As HN and Reddit and slashdot before them seep into the journalistic
consciousness there are pretty clear efforts to craft a message based on
selective sampling. By drilling into the sources for all the clips
(unnecessary of course but bear with me) used to compose the 'call me maybe'
video its clear that the President never set out to make this video or even
knew the lyrics (probably does now though :-) and this slashdot article
appears to be a lesser instance of the same effect. Pull a few bits out of
context, wrap them together into a choice sounding narrative and blam! you've
got a "story."

So to answer your question the 'telephone' you mention is simply 'spin
doctoring' (to use the 20th century vernacular) and it will continue as long
as people make long enough sound bytes in their communication that they can be
re-purposed for spin without setting off too many alarms in the readership.

[1] <http://www.youtube.com/watch?v=hX1YVzdnpEc>

~~~
tptacek
It bothers me that we are O.K. with this, militantly O.K. with it, so long as
the spin confirms our biases.

~~~
ChuckMcM
So are you railing against the nature of humans? I mean you're not the 'Wake
UP! sheeple' type generally, and you're contribution here (and presumably
elsewhere) is clearly appreciated, so you are taking action on your concerns
(which is great and way ahead of a number of others).

Patrick rightfully called me out the other day for creating out of whole cloth
this 'other' which could be held up and criticized. Is that what you are doing
by saying _"... we are O.K. with this,"_? Who are the 'we' in that context, I
don't like it, you don't like it, so it isn't you and I but is this group of
'others' some great uncritical mass of readers? And then to go one step deeper
are you railing against, 'their' agenda or this technique of spinning?

"Pandering to the crowd", "Preaching to the choir", and other colloquialisms
for providing positive feedback on a system of beliefs is as old as humans.
Maybe older. I suspect its in our nature to have self doubt and to seek out
re-assurance of our beliefs. It takes practice and introspection to catch
yourself being 'sold' rather than 'educated.' For some people that effort
doesn't pay sufficient dividends to invest the effort.

I find these human driven belief systems to be some of the most intriguing
from a systems analysis point of view. I feel compassion for folks who are
unwitting participants, and I feel anger towards folks who manipulate them to
their own advantage, and admiration for folks who manipulate them for the
greater good of the community.

~~~
tptacek
You're chasing this pointer maybe a few links farther than I intended. I'm
just saying that it's annoying that message board threads are comfortable
ignoring the dishonesty of sources like Techdirt and Torrentfreak, so long as
those sources are whipping up rageviews from people who vocally support
copyright infringement.

------
rabidsnail
The quote (via two layers of blogspam):

Whenever possible, when the law is ambiguous or silent on the issue at bar,
the courts should let those who want to market new technologies carry the
burden of persuasion that a new exception to the broad rights enacted by
Congress should be established. That is especially so if that technology poses
grave dangers to the exclusive rights that Congress has given copyright
owners. _Commercial exploiters of new technologies should be required to
convince Congress to sanction a new delivery system and/or exempt it from
copyright liability. That is what Congress intended._

Translation: "The courts are in business to protect us, not you". This,
broadly, has been their position from the beginning. It's ridiculous, sure,
but predictable.

~~~
tedunangst
Thanks, that's less hyperbolic than the title, but I don't think you've quite
captured what he's saying either. I think he's saying if you invent a new
tech, YouHolodeck, you're not magically exempt from copyright law and you
can't just post existing copyrighted material ("but it's different, it's
holographic"). Existing laws should apply, without needing constant updating
("on the internet", "in the holodeck", "in the singularity").

If you want an _exception_ you have to ask for it, you don't get one by
default. That does _not_ mean the new technology is illegal. If Disney says no
Mickey Mouse in holospace, then no Mickey Mouse in holospace, but you're still
going to be free to post holos of your local street corner mime doing his
thing.

~~~
AnthonyMouse
>I think he's saying if you invent a new tech, YouHolodeck, you're not
magically exempt from copyright law and you can't just post existing
copyrighted material ("but it's different, it's holographic"). Existing laws
should apply, without needing constant updating ("on the internet", "in the
holodeck", "in the singularity").

I don't agree that he's saying that. The issue is that (leaving DRM
circumvention tools aside) standard copyright law doesn't prohibit
distribution _technologies_ at all, just infringement. Hollywood doesn't like
that -- they want to be in charge of what distribution technologies people are
allowed to create, regardless of what they're used for. So their end run
around it has two parts: 1) They refuse to sanction the use of the new
technology for their own content, and then 2) they argue that because it isn't
sanctioned by the major players, substantially all use must be infringing and
dissemination of the technology itself (regardless of use) therefore induces
that infringement and has no substantial non-infringing use.

It isn't about Mickey Mouse and the local mime. Aereo doesn't pick which
channels its users watch. Its users can use the technology to watch PBS
broadcasts (e.g. of your local mime) that are distributed under Creative
Commons or other permissive licenses, or Presidential speeches that as U.S.
government works fall immediately into the public domain, or use the
technology to record video that the users have negotiated a separate license
for with the copyright holders, or make a variety of legal fair uses of the
plaintiffs' copyrighted material. Or the users can use it for blatant
infringement, e.g. to record sitcoms and burn them to DVDs to sell in the
street. But that's all between the copyright holders and the individual users.
Aereo is just providing the technology -- and Hollywood is trying to stop the
_technology_ , not the infringement.

~~~
tptacek
Did you read the amicus that Techdirt is (poorly) summarizing? Because I read
your comment and I can't find anything in it that refers to what Oman actually
said. You instead seem to be arguing about what "the content industry"
"wants". The content industry obviously wants a lot of silly things, but we're
discussing a specific court filing --- more importantly, that's what
'tedunangst is talking about, and so if you're not talking about Oman's filing
it's very weird to say he's wrong.

~~~
AnthonyMouse
In the filing (which rabidsnail quoted above) Oman makes the argument that not
enjoining use of a _technology_ (rather than an identifiable act of
infringement of a particular work in a specified context) is to exempt the
distribution technology from copyright liability. That is clearly nonsense --
find a user using it for an act of blatant infringement and you'll be able to
collect damages or enjoin that infringement. But that isn't what they're
asking for. They aren't trying to stop just the infringement, they are (as I
said) trying to stop the technology itself.

They're asking for a veto -- not on using new technology to distribute Mickey
Mouse, but on using new technology for _anything_ because someone _could_ (and
probably will) use it to distribute Mickey Mouse.

~~~
tptacek
Saying that the vendor of a product carries the burden of persuasion that
their product isn't solely intended for infringement is very different from
suggesting that all technology should be enjoined by default. Do you think
Oman is also arguing that copy shops should be enjoined by print
rightsholders? If you'd read the whole amicus, rather than a quote out of
context, you might have to ask yourself that question.

~~~
AnthonyMouse
>Saying that the vendor of a product carries the burden of persuasion that
their product isn't solely intended for infringement is very different from
suggesting that all technology should be enjoined by default.

I'm not clear on how it's different. If the product _is_ solely intended for
infringement then it gets enjoined, right? So they're arguing that by default,
unless the vendor can prove otherwise (the vendor having the burden of proof),
the product should get enjoined on request.

~~~
tptacek
A judge has to determine that the product is solely intended to infringe, just
as they've had to do since the Betamax case.

------
sologoub
It might be useful to have the full story behind Aereo. If I recall correctly,
they are trying to serve as an Antenna outsourcing service of sorts - you pay
them to house your antenna and they let you watch TV from anywhere you have an
internet connection.

From a consumer's point of view, seems very reasonable and convenient. A
Dropbox for public TV of sorts.

~~~
tedunangst
That is basically it. Aereo is not doing any one thing you could not do
yourself, but the conglomeration is a little gray.

As an admittedly poor analogy, the police can follow you around without a
warrant. They can't, however, slap a GPS tracker on everybody's car and follow
ten million people around simultaneously. The law is interpreted by people,
and they consider things like scale, scope, automation, intent, etc.

~~~
sologoub
That's a very interesting detail (sorry taking discussion a bit off track),
but as UAV technology compresses and shifts to commodity scale, Police could
potentially have a robot "follow" you around without warrant. It would seem
that the original intent of the provision limiting surveillance gets
circumvented.

~~~
tptacek
The principal that prevents the police from attaching GPS devices to your car
has less to do with the scope of surveillance and more to do with the fact
that the police have to violate your personal property to accomplish it.

~~~
timsally
I think some expansion of this statement is in order. As far as settled SCOTUS
cases go, the _only_ reason why police need a warrant to attach a GPS to your
car is because they must "sieze" the car (for however brief a time) in order
to attach the device. As you alude to, it has nothing to do with the
surveillance itself. However this is far from a settled issue. At least 4 out
of the 9 SCOTUS justices support a new Fourth Amendment theory called the
"mosaic theory", introduced by Alito in US v. Jones (2012). Under this theory,
courts would evaluate the actions by government in aggregate to determine if
the actions constituted a search. Under such a doctrine, 24 hour GPS
surveillance on public roadways may well be illegal without a warrant. This
theory has been criticized by some academics as too difficult of an analysis
for the courts to handle. Yet it does show that the justices are indeed
considering the scope of surveillance and some of them are trying to figure
out a way to limit the scope using Fourth Amendment analysis. Alito in
particular seems worried about it and he has found support for at least some
of his ideas from Ginsburg, Breyer, Kagan, and Sotomayor

------
thowar2
I'm seeing a lot of slashdot.org posts today that are just small snippets of
the original article that add little or nothing...

~~~
lucian1900
Most slashdot posts are like that.

~~~
tedunangst
It's a link aggregator, what do you expect? HN titles add little to (and
frequently detract from) the article's content...

~~~
wtracy
Surely a link aggregator like HN can do better than linking to another link
aggregator? Come on.

~~~
tedunangst
I agree, but it's unfair to blame slashdot for HN's failings.

------
mtgx
Someone should make a website or a subreddit with "Shit the Copyright People
Say". I'm sure it will fill up quickly.

------
fleitz
Excellent, the iTunes store is illegal, and the RIAA is a conspiracy with
Apple to foist illegal technology upon citizens, lets bring RICO charges
against the record execs. Someone who runs a record store somewhere must have
committed a crime at some point, so lets run them through the presumption of
guilt via a RICO charge. Lets also make sure they aren't using criminal funds
to fund their defence and freeze their accounts.

