Amicus Brief in (very interesting) Aereo case in the 2d Circuit

Yesterday, a group of 34 law professors filed an amicus brief that I drafted in the 2d Circuit’s WNET  et al v Aereo case.  The case is a really interesting one — techdirt has a good write-up here about it.  Aereo is in the business of allowing consumers, in effect, to rent a little teeny TV antenna that can pick up over-the-air broadcasts, and a little teeny bit of disk storage space, and then to record over-the-air programming for later viewing over the Net.  A coalition of broadcasters (like WNET, ABC, etc.) and content providers (Disney, Fox Entertainment) have brought suit, asserting that this amounts to copyright infringement as a “public transmission” of copyrighted content.  Aereo defends, relying primarily on the 2d Circuit’s Cablevision case from several years ago (which I was also involved in, and which I blogged about here), which held that a cable system’s DVR service (which did more-or-less what Aereo is doing, except for cable programming rather than over-the-air broadcasts) was NOT infringing copyright because the service, which allowed individual users to utilize “their own” recordings, was not transmitting the copyrighted content “to the public.”

Lots of interesting and complicated copyright issues here – but our brief doesn’t really take them on.  It’s focused on a much more abstract point of copyright policy, namely the question of how the Copyright Act should be construed when it is silent or ambiguous on a particular question (involving the copyright implications of some new technological development that the statute’s drafters had not contemplated).  We felt compelled to submit something because one of the amicus briefs submitted on plaintiffs’ behalf, by the former Register of Copyright Ralph Oman, said this:

If Congress wants to permit Internet streaming, it is free to do so, but the burden should not be placed on businesses in Appellants’ circumstances to get some sort of congressional reaffirmation that the Transmit Clause applies to Internet retransmissions. . . . The courts should not saddle the copyright owner with having to convince Congress to act to prohibit unauthorized Internet retransmissions. 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.

That is flat-out wrong – at least, so we argue in the brief.

The Copyright Act favors neither copyright owners nor technology innovators; it seeks the balance between them that best serves the public interest in the creation and dissemination of creative works of authorship.  That balance is for Congress, ultimately, to strike.  When the statute is silent or ambiguous on the copyright implications of a new technology– where Congress has not (yet) spoken on the question or performed the necessary and often-difficult balancing of competing interests – the court’s role in construing the statute is not to produce maximum authorial reward, but maximum public benefit.  Where that means (as it often does) that it is the copyright owners who must persuade Congress to address the matter and adjust the balance so that it tips more in their favor, they are entitled and well-equipped to do that, as they have done so often in the past.

It’s a really important principle – copyright law does not exist for the benefit of authors; it uses the benefit granted to authors because that is a means to increase the creation and the availability of creative works to the public.  Deciding whether the law should, or should not, declare some new technology to be infringing is for Congress to decide — and it is the copyright holders, generally speaking, who do and who should bear the burden of persuading Congress to include some new technology to be within their exclusive control, rather than the technology providers having to persuade Congress that they’re entitled to some exemption.

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