An Unhelpful Amicus: Section 230 Precludes the Injunction, Except That it Doesn’t

I’ve been reading through the amicus briefs in Garcia v. Google, which the Ninth Circuit has conveniently gathered for those interested, and I came across what I think must be one of the least helpful arguments ever made by a “friend of the court.” Mind-bogglingly so.

The brief argues—with what I presume is a straight face—that the injunction in Garcia, a federal question copyright case, is precluded by Section 230. At the same time, however, the brief admits that Section 230 doesn’t actually apply.

The Ninth Circuit solicited amicus briefs:

The court grants leave pursuant to Federal Rule of Appellate Procedure 29(a) to any amicus wishing to file a brief bearing on the petition . . . .

How an argument about Section 230 has any “bearing on the petition,” I truly don’t know. Google’s petition for rehearing en banc, unsurprisingly, makes no mention of Section 230, instead simply arguing that the Ninth Circuit applied the wrong preliminary injunction standard.

It’s a well-worn truism that “by the nature of things an amicus is not normally impartial.”1 But the impartiality displayed here goes far beyond any pretense of assisting the court.

The brief asserts that “here the law explicitly restricted those [remedies] that could be imposed on intermediaries like Google.” And claimed among the applicable remedy-restricting laws is Section 230. This is not some makeweight argument thrown in at the end. This is the brief’s lead argument.

The brief maintains, quite correctly:

Section 230 is therefore unequivocal in the immunity it provides intermediaries, decreeing that, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provide d by another information content provider.” § 230(c)(1).

That’s precisely what Section 230 says, but it also says that Section 230 doesn’t apply in copyright cases: “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”2

And, remarkably, the brief admits as much in the associated footnote:

While Section 230’s immunity is unequivocal there are a few exceptions to its applicability, including for claims involving intellectual property. § 230(e)(2). However, even if Garcia’s copyright claim were valid, the principles underlying Section 230 remain central to the present dispute.

This is the argument that rebuts itself. Over the course of two pages, the brief goes from claiming that “here the law explicitly restricted” the injunction to an admission that the law in question doesn’t even apply—and explicitly so. I would say you can’t make this stuff up, but apparently you can.

Undeterred by its own contradiction, the brief tries to salvage things by claiming that it’s nevertheless the “principles underlying Section 230” that preclude the injunction here. What legal support is cited for this curious proposition? None, naturally. And surely none exists.

Why would the principles that underlie a statute that explicitly does not limit the law pertaining to intellectual property preclude an injunction in a copyright case? Policy reasons can inform the scope and nature of the relief, no doubt, but that’s a different animal than claiming that Section 230 outright precludes the injunction.

Incredibly, and without hint of irony, the brief continues:

Because Section 230 puts user-generated content beyond the reach of court orders for deletion, plaintiffs often try to bypass its reach by recasting their state law claims, for which intermediaries would be immune from requirements to take it down, as intellectual property claims, for which intermediaries are not. . . . . [B]ecause this exemption clearly applies to federal copyright claims it has become very easy for people to censor content they don’t like by simply by framing their displeasure as a copyright claim, however speciously, because doing so targets the intermediary’s un-immune Achilles heel.

I have to chuckle at this because, if anything, the brief is trying to bypass the reach of copyright law by recasting the copyright claim in terms of Section 230. Otherwise, that pesky “un-immune Achilles heel” would support the injunction, I suppose.3

So, here you go, Ninth Circuit! Enjoy this wonderful assistance from this “friend of the court”: Section 230 explicitly precludes the injunction, except for the fact that Section 230 explicitly does not apply. That should clear things right up.

  1. Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970). []
  2. 47 U.S.C.A. § 230(e)(2) (West 2014). []
  3. See 17 U.S.C.A. § 502(a) (West 2014) (“Any court having jurisdiction of a civil action arising under this title may . . . grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.”). []
Posted in Copyright Theory | Tagged , , | Leave a comment

Does Double Jeopardy Forestall Auernheimer’s Retrial?

The news came out last week that Andrew “weev” Auernheimer’s CFAA and identity fraud convictions have been vacated by the U.S. Court of Appeals for the Third Circuit for improper venue.1

Auernheimer had been convicted in the U.S. District Court for the District of New Jersey, but the problem with this, according to the Third Circuit, is that none of the essential elements of the crimes had taken place in New Jersey. Auernheimer and his alleged co-conspirator operated out of Arkansas and California, respectively, and the servers they accessed were located in Texas and Georgia.

After hearing of the Third Circuit’s vacatur on procedural grounds, I immediately wondered whether the government would simply prosecute Auernheimer in the proper venue. Apparently, though, Auernheimer’s lawyers think this would amount to unconstitutional double jeopardy.

As reported by Ars Technica:

The defendant’s attorney, Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, said in an e-mail that a “retrial is barred by double jeopardy.” If the authorities do seek a second trial, he said, “we will raise precisely that.”

Auernheimer even mentioned the double jeopardy argument in a tweet:

In case you can’t read it, it says: “I have already forbidden @TorEkelandPC from filing a double jeopardy motion. I will attack the CFAA again.” Tor Ekeland is the law firm that represents Auernheimer. The notion here is that he’d rather not win on a technicality—even though, of course, he’s out of jail and able to tweet because he won on a technicality.

The government has now consented to the dismissal of the indictment against Auernheimer in New Jersey, but the government makes clear that it believes that Auernheimer can still be prosecuted in another district where venue is proper:

Consenting to this dismissal does not preclude the Government from continuing this prosecution in another venue.

So who’s right? I’m certainly no expert on double jeopardy, but I think that the government is correct to assert that it can still prosecute Auernheimer in the proper venue.

As the Supreme Court stated in Burks:

The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.2

In other words, if the government fails to produce adequate evidence to prove an element of the crime, then the defendant is acquitted and the government doesn’t get another bite at the apple. But this has nothing to do with a conviction being vacated because of a procedural error.

The Supreme Court in Burks continued:

The principle that [the Double Jeopardy Clause] does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence. . . . In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case.3

And this is the problem for Auernheimer. His conviction was vacated because the district court had committed “an error in the proceedings leading to conviction,” not because of any “evidentiary insufficiency.”

In fact, the U.S. Court of Appeals for the Eleventh Circuit has rejected the very claim that Auernheimer is making here:

This appeal raises the question of whether it violates the double jeopardy clause to retry a defendant whose criminal conviction was reversed because of improper venue. We hold that reversal because of improper venue is not the same as reversal for insufficient evidence to support a conviction, which would bar a retrial, and that retrial is permitted here. . . . [T]he proper approach to the application of Burks to this case is to determine whether proof of venue goes to the merits of the charge, or is more like the procedural rulings which do not involve double jeopardy.4

The Eleventh Circuit held that proof of venue is procedural in nature and does not go to the merits, thus making double jeopardy inapplicable when reversal is based on improper venue.

The U.S. Court of Appeals for the Tenth Circuit has endorsed a similar view:

Venue is, of course, unlike the substantive facts which bear on guilt or innocence in the case. Venue is wholly neutral; it is a question of procedure, more than anything else, and it does not either prove or disprove the guilt of the accused.5

The Tenth Circuit went on to note that “the Fifth Amendment protects against twice being prosecuted and punished for the same offense following an acquittal or conviction on the merits.”6

And this gets to the heart of why I think Auernheimer’s retrial would not be forestalled by double jeopardy. Retrials are often constitutionally permissible after procedural errors, such as improper jury instruction or improper admission of evidence.7 These retrials do not raise double jeopardy concerns because they do not arise after the defendant obtained an acquittal on the merits.

The problem for Auernheimer is that he was not acquitted; his conviction was vacated on a procedural technicality, i.e., on the sole ground that venue did not lie in New Jersey. But having his conviction vacated for improper venue is not an acquittal on the merits, so it seems to me that double jeopardy does not apply and the government is free to prosecute Auernheimer again in the proper venue.

  1. See United States v. Auernheimer, No. 13-1816, 2014 WL 1395670 (3d Cir. Apr. 11, 2014). []
  2. Burks v. United States, 437 U.S. 1, 11 (1978) (internal citations and footnote omitted). []
  3. Id. at 14 (internal citations and quotations omitted) (brackets and italics in original). []
  4. Haney v. Burgess, 799 F.2d 661, 662-63 (11th Cir. 1986). []
  5. Wilkett v. United States, 655 F.2d 1007, 1011 (10th Cir. 1981); see also United States v. Miller, 111 F.3d 747, 749 (10th Cir. 1997) (“Although venue is a right of constitutional dimension, and has been characterized as an element of every crime, this court and others have consistently treated venue differently from other, substantive elements of a charged offense.”) (internal citations and quotations omitted). []
  6. Id. at 1013. []
  7. See 4 Constitutional Rights of the Accused 3d § 29:29 (“A successful appeal of a conviction on the ground of a procedural error committed during the course of the prosecution normally will not bar retrial on the same charges.”) (gathering cases). []
Posted in Constitutional Theory | Tagged , , , | Leave a comment

While Cloud Defenders Fret, Aereo Petitioners and Amici Defend the Cloud

To Project DisCo’s Matt Schruers, the Aereo appeal “puts the cloud at risk” because everything the petitioners say about Aereo pertains to all cloud services just the same. To his mind, the petitioners “insist that ‘any device or process’ that transmits works to the public makes a public performance, each of which must be licensed.” He thinks that whatever the petitioners say about Aereo “applies with equal force to cloud storage like Dropbox, SkyDrive, iCloud, and Google Drive,” and the “anti-Aereo rationale doesn’t distinguish between Aereo and the cloud.” For Schruers, any decision against Aereo, especially on the petitioners’ own terms, would be super-scary for the cloud—the DMCA, apparently, notwithstanding.

Schruers’ suggestion that the petitioners’ position would be injurious to the cloud stems from the argument that the Transmit Clause, which says that it’s a public performance to transmit a performance of a work “to the public” even if it can be received “at different times,” implies that multiple asynchronous transmissions should be aggregated together as constituting the same public performance. It’s easy to see how this view would be mischievous: If you and I both save our legally-acquired personal copies of the same work to the same cloud service for later playback, then why wouldn’t our subsequent individual transmissions be aggregated together as constituting the same public performance on the service provider’s part?

The fault with this line of reasoning is that the aggregation theory is only scary if the petitioners are actually arguing that multiple transmissions from the same service provider should always be aggregated together. The fact is that they are not. There’s only two mentions of the aggregation theory in the petitioners’ opening merits brief before the Supreme Court. The first is this:

That Aereo uses multiple transmissions to transmit the same performance to members of the public is immaterial as well, as Congress expressly contemplated the use of multiple transmissions when it provided that an alleged infringer is transmitting a performance to the public regardless of whether members of the public receive the performance “at the same time or at different times.” . . . Two members of the public who receive a performance “at different times” necessarily receive it by way of separate transmissions.

And then later in the brief, the petitioners attack the Second Circuit’s reading of the Transmit Clause:

One glaring problem with the Second Circuit’s construction is that it renders a significant part of the language from which it is purportedly derived entirely superfluous. Congress said explicitly that an alleged infringer is transmitting a performance to the public even when “members of the public capable of receiving the performance or display receive it . . . at different times.” . . . Of course, it is essentially impossible for two people to receive the same transmission of a performance “at different times.” Accordingly, even the Second Circuit was forced to acknowledge that its reading of the transmit clause renders that language superfluous.

The petitioners are not arguing, as Schruers suggests, that all transmissions of the same performance by the same cloud service provider should be aggregated together. They are instead saying that Aereo can’t escape liability through the simple expedient of using multiple asynchronous transmissions. In other words, it’s not necessarily true that each transmission is private because it is receivable “at different times.” Its asynchronous nature doesn’t automatically detract from its public nature, and it can be “to the public” even when each member of the public can receive an individualized transmission “at different times.”

More importantly, the petitioners point out that the doomsayers’ fears about the cloud are misplaced:

Contrary to Aereo’s alarmist suggestions, a decision from this Court reaching the same conclusion need not threaten the future of “cloud computing” technology, or any of the readily distinguishable services to which Aereo attempts to analogize itself. There is an obvious difference between a service that merely stores and provides an individual user access to copies of copyrighted content that the user already has legally obtained, and a service that offers the copyrighted content itself to the public at large.

Thus, even the petitioners, whom Schruers thinks are gunning for the cloud, acknowledge that there’s a simple way to differentiate legal from illegal cloud service providers—and this turns on who supplies the content. When the cloud service is used to store and stream content that the subscriber has legally obtained in the first place, the cloud service provider is not a direct infringer. And when the cloud service provider itself is supplying the very content at issue, it’s a direct infringer. The implication for Aereo is obvious: Aereo’s subscribers aren’t using its service to store and stream content they have already legally acquired; they instead are using Aereo’s service to acquire that content in the first place. Since Aereo itself supplies the very content at issue—and does so without license—it’s a direct infringer of the public performance right.

This is the same point I made in my last post about Aereo, where I explained why I think the cloud will be safe even if Aereo is shut down. This is, of course, in large part due to the DMCA—the immunity-granting statute that many cloud doom-and-gloomers conspicuously fail to mention. But, more fundamentally, I argued that there is a difference between a service provider which is a passive conduit, supplying only dumb pipes used by others to infringe, and a service provider which is an active participant, taking affirmative steps to bring about the particular copying at issue. It’s quite simple to find that Aereo is an active participant—and thus a direct infringer of the public performance right—without finding that other cloud service providers are in the same boat. The way to arrive at this conclusion is by application of the only bright-line rule that exists for separating passive conduits from active participants, namely, whether the service provider itself supplies the very content at issue.

A quick recap of my argument is this: One way to publicly perform a work is by transmission of a performance of the work to the public. Whether the transmission is to the public depends on the identites of the sender and the receiver, since only then can we determine whether that relationship is public or private. When a performance of a work is transmitted from a service to a subscriber, sometimes the identity of the sender is the service provider and sometimes it’s the subscriber. When the service provider is a passive conduit, the identity of the sender is the subscriber and it’s a private performance. And when the service provider is an active participant, the identity of the sender is the service provider and it’s a public performance.

So how do we distinguish passive conduits from active participants? Simple. When a service provider allows a subscriber to access content which the subscriber has legally acquired in the first place, that service provider is a passive conduit. On the other hand, when a service provider itself supplies the very content at issue to the subscriber, that service provider is an active participant. Note how the pieces fit together: In order to establish whether a service provider is a passive conduit or an active participant, we look at that service provider’s volitional conduct in causing the transmission to occur. When the service provider itself supplies the very content at issue, its volitional conduct is sufficient to find that it is the identity of the sender. Assuming the receiver is a member of the public, the transmission is a public performance.

By suggesting that liability for cloud service providers turns on who supplies the content, the petitioners have a far more nuanced reading of the Transmit Clause than Schruers gives them credit for.  And, properly understood, the petitioners’ views are far less scary for the cloud than Schruers admits. Moreover, the amicus briefs submitted by the United States (“the government”), the Center for Democracy and Technology (“the CDT”), and the BSA | The Software Alliance (“the BSA”), which Schruers cites as reasons why we should all be worried about the cloud’s fate, all point out the same simple approach for distinguishing passive conduits from active participants.

In the government’s amicus brief, the distinction is made between services providers which supply the content and those which do not:

Reversal of the judgment below need not threaten the legality of cloud computing. One function of cloud-computing services is to offer consumers more numerous and convenient means of playing back copies that the consumers already lawfully acquired. A consumer’s playback of her own lawfully-acquired copy of a copyrighted work to herself will ordinarily be a non-infringing private performance, and it may be protected by fair-use principles as well.

Respondent’s service, by contrast, enables subscribers to gain access to copyrighted content in the first instance—the same service that cable companies have traditionally provided. Unlike cable companies, however, respondent does not pay licensing fees to the copyright holders. A decisions holding that respondent publicly performs the broadcast programs it transmits to paying subscribers will not threaten the use of different technologies that assist consumers in hearing or viewing their own lawfully-acquired copies of copyrighted works.

To his credit, Schruers does confirm that the government presents this simple dichotomy: “The USG’s rationale is that as long as a consumer has lawfully acquired media in the first place, no cloud service need worry that someone will demand a license.” But then Schruers quickly tries to dismiss this argument by alluding to some other, albeit unnamed, amici whom he claims disagree. Furthermore, he takes issue with the government’s choice of words in saying that Aereo’s loss “need not threaten the legality of cloud computing.” He notes that the government “conspicuously does not argue that it will not threaten the cloud.” This argument is unpersuasive to begin with, and it’s undercut by the fact that just three sentences later the government explicitly says that a decision against Aereo “will not threaten the use of different technologies that assist consumers in hearing or viewing their own lawfully-acquired copies of copyrighted works.”

Schruers notes that the CDT “argued that an ‘overly broad view of the public performance right would chill the promise and progress of cloud computing.’” This is no doubt true. Should the Supreme Court’s interpretation of the Transmit Clause be overly broad, the cloud would be endangered. But what the CDT doesn’t do is wave its hands in the air and say that we should all be panic-stricken for the cloud. The CDT instead offers an interpretation of the Transmit Clause which recognizes the simple dichotomy between passive conduits and active participants.

As the CDT amicus brief puts it:

[W]hen a user accesses her own digital files (whether music, video, text, or software) over the Internet, the resulting transmission should not be treated as a public performance within the meaning of the Copyright Act. Thus, when a consumer uses a cloud-based service like an online backup or storage locker for his lawful copies of copyrighted works, the later transmission of those copies back to himself, in a manner not accessible to others, does not constitute an exercise of the public performance right.

The Court should take care not to analyze the present case in a manner that would undercut, ignore, or reject this crucial principle regarding one-to-one transmissions of personal copies. In particular, it should avoid any suggestion that the transmission to users of their own, lawfully acquired personal copies constitutes public performance.

It should be mentioned that Schruers is certainly cognizant of this argument, for the second paragraph is a verbatim transcription of what Schruers himself argued in an amicus brief before the Court of Appeals for the District of Columbia Circuit in the Aereo-copycat FilmOn X appeal. Note too how the CDT’s argument tracks that of the petitioners and the government—what matters is whether the content was legally acquired by the subscriber in the first place. But the CDT brief is even more nuanced than that, and its argument tracks my own in claiming that whether the service provider is the identity of the sender depends on the volitional conduct test, which uses a proximate causation analysis to determine who directly causes the transmission to occur.

As the CDT explains:

When a computer system is used to reproduce or perform a work in a way that may infringe, direct liability is reserved for parties whose volitional conduct is sufficiently proximate to the infringement. Where the key volitional conduct lies with the computer system’s users, the legal responsibility of the computer system is analyzed under principles of secondary liability. ***

The Cablevision case applied the volitional conduct test to the act of copying. On the facts of that case, the court held that the user engages in the volitional conduct that causes a specific program to be recorded. Users therefore were deemed to be the ones who “do” the copying. . . . The Second Circuit expressly declined to reach the question of whose volitional conduct triggers the subsequent playback, because it held the resulting performances to be private in any event. . . . That made the volitional conduct question moot. But as a general matter, volitional conduct is an important additional element of public performance analysis. [footnote 9] ***

[footnote 9] Following Cablevision, the court below did not consider the issue of volitional conduct: who here is performing the broadcasts, the users or Aereo? Petitioners simply assume that Aereo is the volitional actor. But if the users are the volitional actors, the Petitioners have effectively conceded in the context of their discussion of the “hapless customer” that no public performance would occur. ***

In short, the volitional conduct requirement draws the line between (a) volitional actors whose overt acts incur direct responsibility for infringement and (b) providers of tools or instrumentalities, who may be secondarily liable for the acts of others, in appropriate circumstances.

With the exception of the footnote, this argument is also a verbatim copy of Schruers’ own argument in the FilmOn X appeal. The CDT, via Schruers, hits the nail on the head when it points out that whether Aereo—or any other cloud service provider, for that matter—is a direct infringer depends on the remoteness of its volitional conduct in bringing about the transmission.

Schruers’ claim about the BSA amicus brief is even more off-kilter. Schruers states:

The Business Software Alliance similarly argued that “[t]ransmissions between a provider of cloud storage services and individual users are thus outside the scope of the Transmit Clause [of the Copyright Act]” and that a “contrary interpretation of the Transmit Clause would be fatal for cloud computing.”

Those quotes are pulled out of context. The BSA actually says this:

Pursuant to the Transmit Clause’s plain terms, a private transmission that is initiated by the user who stored the content and is accessible only to that user cannot violate the Transmit Clause. Transmissions between a provider of cloud storage services and individual users are thus outside the scope of the Transmit Clause.

A contrary interpretation of the Transmit Clause would be fatal for cloud computing. Cloud networks would be unable to function if every user-directed transmission implicated the Transmit Clause.

The BSA does not merely state that any transmission from a cloud service provider to its subscriber is beyond the Transmit Clause’s reach. It specifically is limiting its argument to “a private transmission that is initiated by the user who stored the content and is accessible only to that user.” This tracks the argument made by the petitioners, the government, and the CDT—and it tracks Schruers’ own argument made elsewhere. The BSA agrees that too broad a reading of the Transmit Clause would be disastrous for the cloud, but it sees this as an opportunity to urge the Supreme Court to adopt a narrower reading.

Adopting the volitional conduct approach, the BSA continues:

Direct liability for copyright infringement requires a volitional act. In the context of cloud-based data storage service—where the storage and transmission of data result from volitional acts performed solely by the user, and the provider of the storage service merely executes the user’s commands—the absence of any volitional act by the provider precludes imposition of direct liability for infringement and bars liability for any infringing acts by its users. [footnote 3]

[footnote 3] A different situation would be presented if a cloud services provider does not simply store data for users and transmit that data as requested by a user, but rather stores a work on its own initiative and offers access to the public generally or to its “subscribers” (or stores the work at the request of a user but transmits the work at the request of persons other than that user).

The BSA too thinks that whether the service provider is a passive conduit or an active participant turns conclusively on who supplies the content. When the subscriber supplies content to himself, the performance is private. But when the service provider itself “stores a work on its own initiative and offers access to the public generally,” the performance is public.

Schruers is no doubt correct to be concerned about the Supreme Court adopting too broad a reading of the Transmit Clause. But where he misses the boat is in his suggestion that a blow to Aereo necessarily means lights out for the cloud. The petitioners’ argument is not so broad as to imperil the cloud—and, in fact, they defend it. Moreover, as the amicus briefs submitted by the government, the CDT, and the BSA all point out, a simple dichotomy exists between passive conduits and active participants which turns on who supplies the content. Schruers here presents the Aereo appeal as an all-or-nothing battle for the cloud, but the truth is that a loss for Aereo needn’t mean any such thing. While other doom merchants have picked up on his argument, one can’t help but think that their strategy is to distract attention away from Aereo itself.

Follow me on Twitter: @devlinhartline

Posted in Copyright Theory | Tagged , , , , , , | 38 Comments

Why Aereo Should Lose and Why it Doesn’t Matter for the Cloud

Cross-posted on the Copyhype blog.

With Aereo’s upcoming oral argument before the Supreme Court, I’ve got tens of thousands of tiny antennae on the mind. The novelty—and, of course, the absurdity—of Aereo’s service makes it one of the more interesting copyright puzzles. Most of the issues with Aereo are repetitive of the issues with Cablevision, and debate abounds over whether the number of source copies matters and whether multiple transmissions should be aggregated. I’ve come to view these issues as red herrings. But there’s another red herring that I’d rather discuss here, and that’s whether a decision against Aereo would be the death knell to the cloud. After all, performances are transmitted from Aereo’s service to members of the public just like they are from some cloud computing services. So why shouldn’t we worry?

In my last post about Aereo, I unconcernedly claimed: “This case isn’t about the future of cloud computing companies—those services are protected by the DMCA.” Why we shouldn’t worry about the cloud is certainly in large part answered by the DMCA, but I want to take it a step deeper and show that, even without the DMCA, some cloud computing companies would not incur liability when content is transmitted from their services to members of the public. The key to understanding why such cloud computing companies are not infringers is the key to understanding why Aereo is an infringer, and this turns on application of the volitional conduct test—a test codified in DMCA, but which is applicable in any context where the Transmit Clause is implicated. The volitional conduct test provides us with a way to separate the Aereo-like goats from the cloud computing sheep.

Under the Transmit Clause, it is a public performance to (1) transmit a performance of a work (2) to the public.1 There is no doubt that a performance of a work is being transmitted with Aereo’s service, so (1) is not at issue. The issue is whether this transmission is “to the public,” which is a term of art. Whether a transmission is “to the public” does not depend on the place to which it is sent, and a transmission to a private place can be “to the public” nonetheless. What makes it “to the public” is the relationship between the sender and the receiver, and this relationship, naturally, depends on the identity of each party. When the relationship between the sender and the receiver is a public one, the transmission is a public performance. And when the relationship between the sender and the receiver is a private one, the transmission is a private performance.

In Aereo,2 the Second Circuit focused on the receiver for each transmission, concluding that when there is a one-to-one relationship between the source copy and the receiver, the performance is private—even if we presume that Aereo is the sender. I think this makes no sense. If Aereo is the sender and the subscriber is the receiver, then that relationship is a public one and the transmission is a public performance. The Second Circuit’s reliance on there being a unique source copy for each receiver was misplaced, for the Transmit Clause cares only about who is transmitting to whom. It says nothing about a source copy—and in fact no source copy is even needed to publicly perform via transmission.3 The issue is simply who is directly causing the transmission to occur. Until we know who is transmitting to the receiver, that is, until we identify the sender, we can’t know whether the relationship between the sender and the receiver is a public one such that it’s “to the public.”

Without fair use or the DMCA to fall back on, the Aereo appeal squarely presents the issue of who is directly causing the transmission when a performance of a work is transmitted from Aereo’s service to the subscriber. In other words, the case boils down to who is the direct performer in this scenario. If the subscriber is the direct performer, then the performance is private since the sender and the receiver are the same party and the transmission therefore is not “to the public.” If Aereo is the direct performer, then the performance is public since the relationship between the sender and the receiver is a public one and the transmission therefore is “to the public.” And whether Aereo is the direct performer turns on the volitional conduct test: Is Aereo’s volitional conduct sufficient such that it directly causes the transmission? I think the answer is clearly “yes,” and how I get there is by utilizing the only bright-line rule under the volitional conduct test.

The genesis of the volitional conduct test is the famous Netcom decision,4 penned in 1995 by District Judge Ronald M. Whyte of the Northern District of California. Pre-DMCA, Judge Whyte was faced with deciding the liability of Netcom, an internet service provider, for infringement taking place utilizing its system. Critically, “Netcom was not itself the source of any of the infringing materials on its system,”5 and the issue was whether it could be a direct infringer of the reproduction right nonetheless. Judge Whyte held that it could not: “Although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.”6 Since “such copies are uploaded by an infringing user,” Judge Whyte continued, Netcom’s actions were not a direct infringement of the reproduction right.7

Judge Whyte acknowledged that copyright infringement is a strict liability tort, meaning that neither knowledge nor intent to infringe need be shown. However, strictly applying that strict liability to reproductions occurring in cyberspace “would hold the entire Internet liable for activities that cannot reasonably be deterred.”8 Grounded in the policy argument that “it does not make sense to adopt a rule that could lead to the liability of countless parties whose role in the infringement is nothing more than setting up and operating a system that is necessary for the functioning of the Internet,” Judge Whyte proposed a dichotomy between a passive conduit, which provides only dumb pipes used by others to copy, and an active participant, which takes affirmative steps to bring about the copying.9 And central to Judge Whyte’s holding that Netcom was a passive conduit was the fact that it was the users who uploaded the content to Netcom’s service in the first place.

The key to understanding Netcom and its progeny is to recognize that the volitional conduct test is not used to determine whether a service provider should be held directly liable in the first place. Instead, a service provider seeks Netcom immunity because, without it, it would otherwise be a direct infringer. The volitional conduct test is perhaps best understood in terms of causation: Even though, because of strict liability, every service provider that is the cause-in-fact of the copying is thereby a direct infringer, certain service providers are nevertheless not directly liable for the copying because their actions are sufficiently remote. Perhaps the leading iteration of the volitional conduct test comes from the Fourth Circuit in CoStar:

[T]o establish direct liability under §§ 501 and 106 of the Act, something more must be shown than mere ownership of a machine used by others to make illegal copies. There must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner.10

The volitional conduct test has also been adopted by the Second and Ninth Circuits,11 as well as by several district courts.12 In fact, Congress baked Netcom immunity under the volitional conduct test right into the DMCA.13 For example, Section 512(c) grants a qualifying service provider immunity “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.”14 The Second Circuit in YouTube and the Ninth Circuit in Shelter Capital read this language very broadly, finding that even transcoding and indexing user-submitted content to facilitate its public playback was protected by the safe harbor.15 While Section 512(c) protects a service provider for many automated acts that occur after a user uploads content to the service, the one thing it doesn’t provide immunity for is content supplied by the service provider itself.

How the volitional conduct test operates in the cloud is demonstrated in the Hotfile case, where the district court stated:

Thus, the law is clear that Hotfile and [the owner] are not liable for direct copyright infringement because they own and manage internet facilities that allow others to upload and download copyrighted material. . . . [T]he website hotfile.com merely allows users to upload and download copyrighted material without volitional conduct from Hotfile or [the owner]. . . . [N]othing in the complaint alleges that Hotfile or [the owner] took direct, volitional steps to violate the plaintiffs’ infringement. There are no allegations, say, that Hotfile uploaded copyrighted material. Therefore, under the great weight of authority, the plaintiffs have failed to allege direct copyright infringement.16

Because neither Hotfile nor the owner had engaged in sufficient volitional conduct, by, for example, uploading the infringing content at issue, the district court found that they could not be held directly liable for the infringement that occurred. Contrasted with Hotfile is Tasini,17 where the Supreme Court held that a database provider was directly liable for violating the public distribution right for content that it had supplied and made available as part of its publicly-accessible database. Because the database provider had supplied the infringing content at issue, this was a sufficient condition for finding that it was a direct infringer.

The import of all this is that where the service provider itself supplies the infringing content that is publicly distributed, displayed, or performed, that service provider can claim neither Netcom immunity nor DMCA immunity. Supplying the infringing content is sufficient for finding that the service provider has directly caused the infringement to occur—but it’s not necessary for such a finding. In other words, if the service provider itself supplies the infringing content, then it is a direct infringer. But sometimes the service provider can also be a direct infringer even if it did not supply the infringing content. This happens when the service provider engages in other volitional conduct “with a nexus sufficiently close and causal to the illegal copying,” to borrow the Fourth Circuit’s phrase, such that it is not only the factual cause of the copying, but the legal cause as well.

For example, in Megaupload, the district court found that the plaintiff had alleged that Kim Dotcom’s infamous website “serves as more than a passive conduit, and more than a mere ‘file storage’ company.”18 Several facts, including Megaupload’s reward program where it paid users to upload content, meant that Megaupload had possibly crossed the line from being a passive conduit to being an active participant in the infringement. Similarly, in Usenet, the district court found that the bulletin board service was “not merely a ‘passive conduit’ that facilitates the exchange of content between users who upload infringing content and users who download such content.”19 The “active measures” and “active steps” engaged in by the defendants “transformed [them] from passive providers of a space in which infringing activities happened to occur to active participants in the process of copyright infringement.”20

Like all proximate causation analysis, the volitional conduct test involves both art and science, and courts engaging in it typically juggle somewhat-vague concepts of foreseeability and temporality with normative decisions about social justice.21 As Dean William Prosser, author of Prosser on Torts and Reporter for the Restatement (Second) of Torts, put it, proximate causation is “our more or less inadequately expressed ideas of what justice demands.”22 Exactly how much volitional conduct it takes for a service provider to cross the line from passive conduit to active participant, no one can say. The analysis is, necessarily, somewhat arbitrary. The only bright-line criteria that exists under the volitional conduct test is that of who supplies the infringing content. When it’s the service provider itself, the volitional conduct on the part of the service provider is sufficient to find it directly liable.

This past week, District Judge Dale A. Kimball of the District of Utah found that the plaintiffs were likely to succeed on the merits against Aereo because it “provid[es] paying customers with retransmission of copyrighted works.” And this gets to the heart of why Aereo should lose before the Supreme Court. Aereo has crossed the line from being a passive conduit to being an active participant because it supplies the very content that is available using its service. Presumably, this is at least part of the reason why Aereo does not argue that Section 512(c) gives it DMCA immunity. Aereo cannot maintain that the content residing on its service is “by reason of the storage at the direction of a user” because the content comes from Aereo itself. The subscriber doesn’t go to Aereo to upload the content he already has to the cloud; the subscriber goes to Aereo to get the content he wants but doesn’t yet have—content which Aereo itself supplies.

The reason why Aereo, and not the subscriber, is the direct performer is simple. Because of copyright’s strict liability nature, every party that is the cause-in-fact of the copying is a direct infringer unless some other doctrine absolves that party from direct liability. The volitional conduct test uses a proximate causation analysis to determine whether a party’s actions are sufficiently remote such that it should not be held directly liable for the infringement. While the metes and bounds of the volitional conduct test are imprecise, to say the least, there is one bright-line rule: When the service provider itself supplies the very content at issue, that service provider’s actions can never be sufficiently remote to absolve it of direct liability. Because Aereo itself supplies the very content at issue—by implementing and making available its system of tens of thousands of tiny antennae that receive and retransmit performances—Aereo is the identity of the sender. And since the relationship between the sender (Aereo) and the receiver (the subscriber) is a public one, the transmission is a public performance.

The argument that it is Aereo’s subscriber, and not Aereo itself, who is the sender is untenable. The Transmit Clause was enacted to capture any service doing exactly what Aereo does, namely, retransmitting a broadcast to the public by any means possible. The petitioners in Aereo do a great job of traversing the history of the Transmit Clause in their opening brief before the Supreme Court, but the short version is this: The Supreme Court had held in a pair of cases that a community antenna television system or a cable system that captured an over-the-air broadcast and retransmitted it to the public was not engaged in a public performance.23 Congress enacted the Transmit Clause to legislatively overrule these two cases, and the words Congress chose, namely, “any device or process” used to transmit a performance, leave no doubt that its concern was with the function of the device or process utilized to make the transmission—not the underlying technical details of the device or process itself.24

Aereo’s argument boils down to it claiming that, even though the Transmit Clause on its face applies to “any device or process” that transmits a performance to the public, its particular device or process is somehow so special under-the-hood that the Transmit Clause doesn’t reach it. The problem with this argument is that the Transmit Clause means what it says, and it’s no answer to say that Aereo is simply doing for a subscriber what he could do for himself. This was the Supreme Court’s reasoning in the two cases the Transmit Clause was enacted to overrule. And even if we accept the argument that Aereo’s subscribers are really lessees of its equipment, the outcome is the same. The test is volitional conduct, and the conduct that matters is the conduct that Aereo itself has actually engaged in. If Aereo’s own actions are sufficient to find it directly liable absent any lease relationship, then its own actions are necessarily sufficient to find it directly liable even with the lease relationship. Because unless there is also some agency relationship between Aereo and its subscriber—for example, if Aereo were the subscriber’s employee—then Aereo’s own actions are only attributable to itself.

Cloud computing companies need not be worried about the outcome of the Aereo appeal because these service providers will continue to be protected by Netcom immunity under the volitional conduct test or by DMCA immunity. Assuming such service providers are protected by the DMCA, there’s an expansive amount of volitional conduct they can engage in without losing their safe harbor. How much volitional conduct they can engage in without losing Netcom immunity is less clear, but what is clear is that when a service provider itself supplies the very content at issue, there is no immunity under either the volitional conduct test or the DMCA. If Aereo loses before the Supreme Court, as I believe they should, it won’t negatively affect cloud computing companies because there is no reason for the Court to look any further than the fact that Aereo supplies the very content at issue. If anything, the Court’s decision will further cement into place the one bright-line rule that there is with the volitional conduct test, and this clarity in the law will redound to the cloud.

Special thanks to Terry Hart and Jonathan Greenfield for their valuable feedback in drafting this post.

Follow me on Twitter: @devlinhartline

  1. See 17 U.S.C.A. § 101 (West 2014) (“To perform or display a work ‘publicly’ means– (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) 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. *** To ‘transmit’ a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.”). []
  2. See WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013). []
  3. For example, live performances and television broadcasts can be captured and transmitted to the public even though the sender possesses no source copy. []
  4. See Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F.Supp. 1361 (N.D. Cal. 1995). []
  5. Id. at 1367. []
  6. Id. at 1370. []
  7. Id. at 1371. []
  8. Id. at 1372. []
  9. Id. []
  10. CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 550 (4th Cir. 2004). []
  11. See Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008); Fox Broad. Co., Inc. v. Dish Network L.L.C., Case No. 12-cv-57048, 2014 WL 260572 (9th Cir. Jan. 24, 2014). []
  12. See, e.g., Field v. Google Inc., 412 F.Supp.2d 1106 (D. Nev. 2006); Playboy Enterprises, Inc. v. Webbworld, Inc., 991 F.Supp. 543 (N.D. Tex. 1997); Playboy Enterprises, Inc. v. Russ Hardenburgh, Inc., 982 F.Supp. 503 (N.D. Ohio 1997); Disney Enterprises, Inc. v. Hotfile Corp., 798 F.Supp.2d 1303 (S.D. Fla. 2011). []
  13. See, e.g., H.R. Rep. 105-551(I), at *11 (“As to direct infringement, liability is ruled out for passive, automatic acts engaged in through a technological process initiated by another. Thus, the bill essentially codifies the result in the leading and most thoughtful judicial decision to date: Religious Technology Center v. Netcom On-line Communications Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995).”); ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 622 (4th Cir. 2001) (“[T]he ultimate conclusion on this point is controlled by Congress’ codification of the Netcom principles in Title II of the DMCA.”). []
  14. 17 U.S.C.A. § 512(c) (West 2014). []
  15. See Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 39 (2d Cir. 2012); UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1016 (9th Cir. 2013). []
  16. Disney Enterprises, Inc. v. Hotfile Corp., 798 F.Supp.2d 1303, 1308 (S.D. Fla. 2011) (internal citations and paragraph break omitted). []
  17. New York Times Co., Inc. v. Tasini, 533 U.S. 483 (2001). []
  18. Perfect 10, Inc. v. Megaupload Ltd., Case No. 11-cv-0191, 2011 WL 3203117, at *4 (S.D. Cal. July 27, 2011). vacated pursuant to settlement, 2011 WL 10618723 (S.D. Cal. Oct. 11, 2011). []
  19. Arista Records LLC v. Usenet.com, Inc., 633 F.Supp.2d 124, 149 (S.D.N.Y. 2009). []
  20. Id. (internal quotations, citations, and brackets omitted). []
  21. See Mark Bartholomew & Patrick F. McArdle, Causing Infringement, 64 Vand. L. Rev. 675, 703 (2011). []
  22. Id. (internal quotations and footnote omitted). []
  23. See Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968); Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394 (1974). []
  24. See, e.g., H.R. Rep. No. 94-1476, at *63 (1976) (A performance occurs “either directly or by means of any device or process, including . . . any sort of transmitting apparatus, any type of electronic retrieval system, and any other techniques and systems not yet in use or even invented.”); id. at *64 (“The definition of ‘transmit’ . . . is broad enough to include all conceivable forms and combinations of wires and wireless communications media, including but by no means limited to radio and television broadcasting as we know them. Each and every method by which the images or sounds comprising a performance . . . are picked up and conveyed is a ‘transmission,’ and if the transmission reaches the public in [an]y form, the case comes within the scope of clause[] (4) . . . of section 106.”). []
Posted in Copyright Theory | Tagged , , , , , , | 1 Comment

Aereo in a Nutshell

Cross-posted on the Copyhype blog.

Now that the Supreme Court has agreed to hear the Aereo appeal, I want to offer a simple explanation of the central legal issue before the Court. Much has been written about Aereo, but surprisingly little of it discusses the actual question the Court will decide. There is no doubt that Aereo is performing works as it retransmits them to its customers—that’s the very service that Aereo provides. The fundamental legal point the Court will determine is whether those performances are public or private. If public, they’re infringing, and if private, they’re not. Don’t let the argle-bargle being tossed out by bloggers and commentators distract you from this simple point.

Lots of arguments being offered by copyright critics are simply wrong. This case isn’t about the future of cloud computing companies—those services are protected by the DMCA. It isn’t about the length of any cord—no matter how long the cord is, the legal question is the same. Nor is it about Aereo simply doing something that a customer could do himself—the fact is that the customer isn’t doing it himself since Aereo is helping him do it. And it certainly isn’t about thwarting the progress of innovation—Aereo’s design is rather ridiculous, and it’s only “innovative” in that it retransmits broadcasts without paying any fees.

The Copyright Act gives copyright owners the exclusive right “to perform the copyrighted work publicly.”1 A work can be performed publicly in one of three ways. The first is by performing the work at a place open to the public or at a place where people outside of one’s family and friends congregate.2 An example of this would be putting on a play at a theater where tickets are available to the general public. The second is by transmitting a performance of the work to a place open to the public or to a place where people outside of one’s family and friends congregate.3 An example of this would be an opera house that transmits a performance to a movie theater where tickets are available to the general public.

The final way a work can be performed publicly is by transmitting a performance of the work to the public, by whatever means, whether the transmission of the performance can be received in one place or in many places and at one time or at many times. An example of this would be a broadcaster that transmits a television show to the general public over the airwaves. This last way of performing a work publicly is the one that’s at issue here with Aereo, and the operable statutory text comes from the last section of what is called the “Transmit Clause” in Section 101 of the Copyright Act. The outcome of the Aereo appeal will turn on how the Supreme Court parses this section of the Transmit Clause, which provides:

To perform . . . a work “publicly” means . . . to transmit or otherwise communicate a performance . . . of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times.4

Note how this opens up four possibilities, all of which are public performances of a work. The transmission of a performance of a work to the public is a public performance if it is capable of being received: (1) in the same place and at the same time, (2) in separate places and at the same time, (3) in the same place and at different times, and (4) in separate places and at different times. These various possibilities are very important here with Aereo because they show that the same public performance of a work can occur via multiple asynchronous transmissions to the public. An example of this would be a work streamed from YouTube—a distinct transmission occurs whenever a member of the general public initiates playback, and despite the asynchronous transmissions, YouTube is publicly performing the work.

The Transmit Clause tells us that several distinct transmissions of a performance to the public, capable of being received in separate places and at different times, can be aggregated together as constituting one single public performance. The tricky part is figuring out when to aggregate multiple transmissions of a performance. And this gets us to the crux of the arguments in the Aereo appeal. The petitioners argue that Aereo’s distinct transmissions to its customers should be aggregated together as constituting part of the same performance, and this would mean the performance is public. Aereo, on the other hand, argues that its distinct transmissions to its customers should not be aggregated, and this would mean that there are several performances which are all private.

The reason Aereo argues that its distinct transmissions of a performance to its customers should not be aggregated is because they are made from unique copies of the underlying work. If YouTube uses only one source copy of a work to make multiple transmissions of a performance to the public, the case law tells us that those distinct transmissions should be aggregated together as constituting part of the same public performance. But Aereo argues that when each distinct transmission of a performance arises from a unique copy, this one-to-one relationship between the source copy and the customer means that multiple transmissions should not be aggregated. Whether there is any legal difference between using one source copy or multiple source copies for these transmissions of a performance forms the key question to be decided by the Supreme Court.

The notion that the private-public performance divide turns on whether the source of the transmissions comes from one copy or from multiple copies can be traced back to the influential Nimmer on Copyright treatise. In the famous Cablevision case,5 the Second Circuit adopted Nimmer’s view that a one-to-one relationship between the source copy and the customer means that multiple transmissions of a performance to the public should not be aggregated, thus making them separate private performances. According to the Cablevision court, when a unique copy is used to transmit a performance of a work to a customer, the only transmission that counts is that particular transmission—other transmissions made to other customers from other copies of the work are irrelevant.

But, as the petitioners in the Aereo appeal point out, this one source copy theory has no textual basis in the Transmit Clause. The Transmit Clause defines what it means to perform a work publicly, and the fact that the same public performance of a work can be received by the public in separate places and at different times tells us that multiple transmissions of a performance can constitute the same public performance. The Transmit Clause says nothing about the number of source copies used to make these multiple transmissions—the words “copy” or “copies” do not appear in the Transmit Clause. What matters is whether the public is capable of receiving the same performance of a work; the number of source copies used to transmit this performance is irrelevant.

The fault with the Second Circuit’s reasoning in Cablevision, and its subsequent application in Aereo,6 is in how it misinterprets the word “performance” in the following section of the Transmit Clause: “whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times.” The Second Circuit replaced the word “performance” with the word “transmission,” and under this construction, the focus is on the audience of a particular transmission. But while a transmission of a performance is itself a performance, the words “transmission” and “performance” are not synonymous and interchangeable.

Thus, under the Second Circuit’s reading of the Transmit Clause, what matters is the potential audience of each distinct transmission. But the Transmit Clause tells us that the proper focus is on the audience of a performance, not the audience of any particular transmission of a performance. The problem with focusing on who is capable of receiving a particular transmission of a performance is that it reads the “different times” language out of the Transmit Clause. The Second Circuit realized as much, and that’s why it read into the Transmit Clause a distinction between one source copy and multiple source copies.7

Given the fact that the Transmit Clause makes no reference to the number of source copies used to generate multiple transmissions of a performance, and given the fact that the Transmit Clause by its very terms says to focus on who is capable of receiving a performance of a work—and not any particular transmission of a performance of a work—I think the Supreme Court should reverse the Second Circuit’s misapplication of the Transmit Clause in Aereo—and, by extension, in Cablevision. What matters is the fact that Aereo’s customers are capable of receiving the same performance of a work, despite the fact that this performance is comprised of distinct transmissions made from distinct copies.

Follow me on Twitter: @devlinhartline

  1. 17 U.S.C.A. § 106(4) (West 2014). []
  2. See 17 U.S.C.A. § 101 (West 2014) (“To perform . . . a work ‘publicly’ means . . . to perform . . . it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”). []
  3. See 17 U.S.C.A. § 101 (West 2014) (“To perform . . . a work ‘publicly’ means . . . to transmit or otherwise communicate a performance . . . of the work to a place specified by clause (1),” i.e. “a place open to the public or . . . any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”). []
  4. 17 U.S.C.A. § 101 (West 2014). []
  5. See Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008). []
  6. See WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013), petition for rehearing en banc denied, WNET, Thirteen v. Aereo, Inc., 722 F.3d 500 (2d Cir. 2013). []
  7. See Aereo, 712 F.3d at 688 n.11 (“The Cablevision court’s focus on the potential audience of each particular transmission would essentially read out the ‘different times’ language, since individuals will not typically receive the same transmission at different times. But Nimmer’s solution—aggregating private transmissions when those transmissions are generated from the same copy—provides a way to reconcile the ‘different times’ language of the Clause.”). []
Posted in Copyright Theory | Tagged , , , , | 1 Comment