Aereo, Copyright, Technological neutrality, function v. effect

American Broadcasting Companies, Inc. v. Aereo, Inc., is a case scheduled for oral argument before the Supreme Court next month. The case gives us an interesting opportunity to reassess the oft-stated aim that copyright law should be technologically neutral.

Aereo offers consumers the ability to watch live free-to-air broadcast television via the Internet with the ability to pause, rewind and fast-forward programming. Aereo provides this service by receiving free-to-air broadcast television on a vast array of micro-antennae, each antenna being dedicated to an individual subscriber. The signals so received are reduced to individual copies of individual programs. These copies are then transmitted to individual subscribers, either virtually live or at some later time. See WNET, THIRTEEN v. Aereo, Inc., 712 F. 3d 676, 680-683 (2d Cir. 2013).

If technological neutrality is a question of the effect of a given technology, then Aereo is, in effect, the same as retransmission system and thus a public performance. But if technologically neutrality is a question of function, then Aereo is a remote DVR + one-to-one performances. It is thus a copying system and not the originator of public performances.

Judge Chin’s dissenting opinion takes an effect-based perspective and argues that regardless of how the Aereo system actually works:

Aereo’s “technology platform” is, however, a sham. The system … is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.

The Copyright Act aims for neutrality in that the public performance right in 17 U.S.C. § 106(4) is defined to include the right “to transmit or otherwise communicate a performance… to the public, by means of any device or process.” Id. § 101. But the problem with Chin’s dissent is that the “by means of any device or process” language does not mean that non-public transmissions are rendered into public transmissions simply because they have the same effect as technology we recognize as implicating the public performance right.

An effect-based vision of technological neutrality flatly contradicts the basic structure of rights under the Copyright Act. The Copyright Act defines the rights of copyright owners with respect to six particular acts–thus, for example, reproducing a copyrighted novel without permission or justification is infringement, reading a copyrighted novel is not. 17 U.S.C. §106(1)-(6).

There are many reasons why we should not disregard the technical details of a system like Aereo’s, but perhaps the most important one is simply that transforming effects into functions is not necessary. Aereo has indeed designed its system to avoid making public performances, but it has done this by adding thousands of individual copies. We should not feel the need to label every performance from a copy as a public performance given that the copyright owner also has an exclusive right to reproduce the work in copies.

This post is a reaction to Brad Greenberg’s presentation on the issue of technological neutrality in copyright at the Fourth Internet Law Scholars Work-in-Progress Symposium.

The awesome program notes for the 4th Internet Law Scholars Work-in-Progress Symposium.

The fourth annual work-in-progress symposium for internet law scholarship  will be held at the Institute for Information Law and Policy at New York Law School on Saturday March 8, 2014 at .

The work-in-progress event was created for internet law scholars to receive feedback about their papers and projects from their academic peers.  This year some of the nation’s  leading internet law academics will convened at New York Law School to present serious papers under the following whimsical headings:

  • Panel 1: Copyright, The Gift That Keeps On Giving
  • Panel 2: Tinfoil Hats Are Only One Solution
  • Panel 3: Paranoia
  • Panel 4: It’s All Good
  • Panel 5: It’s Private
  • Panel 6: This Internet Thing Is Going To Be Huge
  • Panel 7: Because Too Much IP is Never Enough
  • Panel 8: The One, True Cyberlaw

Dan Hunter (Distinguished Visiting Professor of Law, New York Law School and Professor of Intellectual Property and Innovation, QUT Law School, Australia) deserves all credit/blame for the above.

Some illustrations to elucidate the #Aereo #copyright case

The U.S. Supreme Court will soon hear arguments in the case of American Broadcasting Companies, Inc. v. Aereo, Inc. (13-461) on the issue of whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet. This is an important case with far reaching implications for digital video recorders, cloud computing and the sale of movies and music online. It is also, unfortunately a case focused on exactly the wrong issue.
Aereo is just one of a long sequence of technologies that have raised conflicts between the interests of content owners and technology companies. Aereo offers the consumer the ability to watch live tv over the internet with the ability to pause, rewind and fast-forward programming.
Aereo provides this service by receiving free to air tv signals on a vast array of micro-antennae. Each antenna is dedicated to an individual subscriber. The tv signals so received are reduced to individual copies of individual programs. These copies are then transmitted to the subscribers.
The Second Circuit held that Aereo’s system did not implicate the copyright owners’ public performance rights under the Copyright Act because each transmission was from a single fixed copy to a single end-user. On the Second Circuit’s view, although Aereo’s system may transmit any given program to a large number of end-users (N), it is best understood as N one-to-one transmissions, not one one-to-N transmission.
A number of broadcasters including the titular plaintiff, American Broadcasting Companies, Inc., argue that the Second Circuit’s understanding of the “transmit clause” –  part of the definition of the public performance right under the Copyright Act – is flawed. The Broadcasters proposed a reading of the act that would render any transmission, from any source, a public performance if it is capable of being received by a sufficient number of persons.
The broadcaster’s preferred reading of the Copyright Act would overturn the Second Circuit’s decision in Cablevision, a case involving a remote digital video recorder (R-DVR).
Cablevision should not be overturned: (1) The broadcaster’s preferred reading of the Copyright Act is incorrect as a matter of legislative history and statutory construction.
(2) The policy concerns raised by the broadcasters and some commenters are misguided. (3) The legality of the Aereo system should turn on the application of the fair use doctrine Aereo’s internet tv service, an issue that the Supreme Court has not been briefed on, but will surely get a full airing in the Second Circuit if the Supreme Court affirms the decision currently under review.
I have added some pictures below that flesh out some of my tentative thoughts on this subject.
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The Supreme Court is addressing the wrong question in #Aereo.

I will be speaking about the ongoing  Aereo litigation tomorrow at the Northwestern Journal of Technology and Intellectual Property’s Annual Symposium.

On April 22nd the Supreme Court will hear arguments as to whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet. My view is that this case should not be about public performance. The court in Cablevision got that one right, no other reading of the Copyright Act makes sense.

The Supreme Court should hold that a single aerial (or N aerials) that copy and transmit at an N:N ratio is not 1 performance to N people, it is N performances to N people and thus not “public”.

This does not mean Aereo is off the hook. Cablevision’s device is consistent with the Supreme Court’s Sony Betamax decision from 1984: copying made possible by a remote-dvr is  fair use. However, to the extent the Aereo system is designed to offer what is, in effect, live or almost live ‘rebroadcast’ beyond the authorized reception range of the original broadcast it may not be fair use. This is an open question, but the Supreme Court can’t decide it because it has not been briefed on the issue.

Whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast is not the right question. Critics of Cablevision seem to think that if there is no public performance right for an R-DVR, then there is no tolling point at which creators get paid. But avoiding public performance does not avoid the initial broadcast or copying.

I have some slides that go into this in a bit more detail. Comments welcome.

Amici warn Supreme Court of the dangers of abstract software patents. #CLSbank

Jason Schultz, Brian Love, Jim Bessen and Mike Meurer have put together an excellent “Brief of Amici Curiae Law, Business, and Economics Scholars” in Alice Corp. v. CLS Bank, a case about to be argued before the US Supreme Court.

I signed this brief because I believe that the experience of the last 20 years shows that extending patent protection to abstract ideas and software functions does far more to impede innovation than it does to encourage it.

The U.S. Court of Appeals for the Federal Circuit has expanded the scope of patentable subject matter for abstract ideas over the last 20 years (see, In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994) and State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998)). This expansion has lead to an explosion of software patenting and software patent litigation. Abstract patent claims award rights beyond the scope of actual invention, their boundaries are unclear, they don’t provide notice to third parties  and, for all these reasons, they invite opportunistic litigation.

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(See U.S. Gov’t Accountability Office, GAO-13-465, Intellectual Property: Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality 13 (2013), available at

The Supreme Court granted cert in this case to decide “Whether claims to computer-implemented inventions—including claims to systems and machines, processes, and items of manufacture—are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101.” I expect the court to rule computer software is patent eligible, but that patent examiners should reject over-broad software patent claims on the basis of lack of patentable subject matter. As the divisions in the Federal Circuit’s en band decision show, it won’t be easy to develop a standard to determine whether a computer-implemented invention is a patent-ineligible, abstract idea.



Dish Network v. ABC Amicus Brief argues No #fairuse difference btw VCR & DVR

The Brief Amicus Curiae Of Intellectual Property Scholars in Dish Network L.L.C., v. American Broadcasting Companies, Inc., Et. Al has just been filed. The case is on appeal from the U.S. District Court for the Southern District of New York. Shubha Ghosh (U. Wisconsin Law School) wrote the brief and several IP academics signed it because we are concerned that

“ABC’s interpretation of copyright law would undermine longstanding fair use precedent. We urge the Court to reject ABC’s attempt to render Sony obsolete and re-litigate the public’s interest in making fair use copies with the aid of time-shifting technology.”

This case is  significant because it will affect the future of private noncommercial time-shifting of television programs – a fair use right expressly recognized by the Supreme Court in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). Our view, expressed in the brief is that the

“advancement of technology from the videotape recorder (“VTR”) to the videocassette recorder (“VCR”) considered in Sony, to today’s digital video recorder (“DVR”) and the technological enhancements of the DVR has not – nor should it – affect the scope of protection expressly recognized in Sony.”

Download the brief here: Paginated Brief Amicus Curiae of Intellectual Property Scholars filed 1_29_14 [D155]


United States Is versus United States Are

When Matthew Jockers, Jason Shultz and I were writing the Digital Humanities Amicus Briefs relating to the Google Books and HathiTrust cases, we searched for an illustration that would concisely explain why data mining expressive works was (a)  socially valuable and (b)  no threat to the copyright interests of the authors of the underlying works. We came across a graph produced using the Google n-gram tool that perfectly fit the bill. The graph below was part of the Digital Humanities Amicus Brief in both the HathiTrust and Google Books cases.



This graph is a reconstruction of data generated using Google Ngram, sampled at five-year intervals. The y-axis is scaled to 1/100,000 of a percent, such that 1 = 0.00001%.

The graph was referred to by the District Court in Authors Guild v. HathiTrust and last week’s decision in Authors Guild v. Google. As we explained in our brief, “[the figure] compares the frequency with which authors of texts in the Google Book Search database refer to the United States as a single entity (“is”) as opposed to a collection of individual states (“are”). As the chart illustrates, it was only in the latter half of the Nineteenth Century that the conception of the United States as a single, indivisible entity was reflected in the way a majority of writers referred to the nation. This is a trend with obvious political and historical significance, of interest to a wide range of scholars and even to the public at large. But this type of comparison is meaningful only to the extent that it uses as raw data a digitized archive of significant size and scope.”

Metadata like this can only be collected by digitizing the entire contents of books, and it clearly does not communicate any author’s original expression to the reading public.

I decided that the graph deserved its own post.

Some thoughts on the use of bio photos

I have noticed over the years that whenever someone puts together a bio page for me in relation to a talk or a conference presentation that they tend to grab just any old photo from the Internet. Quite frankly, some of these photographs a more flattering than others. Most of them are not as good as the selfy I took on my iPhone this morning.  Photos from 10 years ago might be considered too flattering in terms of hairline.

Perhaps with some strategic tagging and linking I can get this to the top of the Google search engine.

Photo of Prof. Matthew Sag 2013

Matthew Sag


I also have a full bio page at which contains all sorts of useful information.

Ivan Sag 1949 – 2013

Ivan was a large and brilliant man, the world feels like a smaller place without him. Ivan loved to drink, he loved to eat, he loved ideas, he loved his wife and he loved his friends. We loved him right back.

Ivan made significant contributions to the fields of syntax, semantics, pragmatics, and language processing. He wrote at least 10 books and over 100 articles. Ivan was the Sadie Dernham Patek Professor in Humanities, Professor of Linguistics, and Director of the Symbolic Systems Program at Stanford University. A fellow of the American Academy of Arts and Sciences and the Linguistic Society of America, in 2005 he received the LSA’s Fromkin Prize for distinguished contributions to the field of linguistics. All of which is to say that he was a brilliant wonderful man who I proudly call my uncle (even though he is in fact my first cousin, once removed). He will be missed.

A true scientist, Ivan was proud to live and die as an atheist.


Who owns the copyright in my Marathon playlist?

I will be running my very first marathon in October this year in Chicago. In connection with the marathon, I am raising money for the American Cancer Society. Almost all of us know someone who has suffered from cancer. There are many fine charities to support. I choose to support the American Cancer Society because they fund a range of research, patient services, early detection, treatment and education programs and because they seem like good people.

Please think about donating to the ACS and helping me reach exceed my fundraising goal of $1500.00. To donate, click on this link (
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If you donate $10 or more, I will add any song of your choosing to my Marathon playlist. So far the selected songs are:

  • Jingle Bells;
  • The Night Chicago Died by Paper Lace;
  • Shout to the Top’ by Style Council;
  • Dies Irae from Mozart’s Requiem;
  • Waltzing Matilda;
  • We Built This City” by Starship;
  • “Born to Run” by Bruce Springsteen;
  • “We are Never Getting Back Together” by Taylor Swift
  • Give Up The Funk by Parliament

The recent lawsuit in the UK where Ministry of Sound is suing Spotify for allowing users to recreate MOS compilations using spotify playlists makes me wonder whether I have any copyright in the playlist that results from my fundraising.

Actually, that was just a pretense to (a) blog about the fact that I am running the Marathon and (b) suggest that if you made it this far into the post, you should donate some money to help fight cancer.