Aereo Ruling Could Impact Pandora

itwbennett writes "Aereo's court battles are far from over, to be sure, but the ruling earlier this month that the TV streaming service doesn't violate copyright laws must have the folks at music streaming service Pandora shaking their heads, wondering why they're still paying royalties that currently consume more than half their revenues. The implications of Aereo's business model are far-reaching and may ultimately 'be resolved by Congress, just as it did when cable first came on the scene, by passing legislation to redefine a public performance,' writes broadcast industry attorney David Oxenford."

Comments

Playing back a recording

[fustakrakich]

It should never be considered a "public performance".. Not until a video of me fixing a toilet actually fixes a toilet.

Re:Playing back a recording

[wierd_w]

I read the words on the paper, silently, and to myself.
Private performance.

I read the words aloud in my own home. The cats look at me like I am insane. (Because I probably am for reading aloud to them to begin with, since they can't comprehend the words I am speaking anyway.)
Private performance.

I read aloud to my 3 year old niece from her favorite Dr Suess book.
Private performance.

I read aloud in front of hundreds of people who paid to attend, or were otherwise asked to attend that reading.
Public performance.

One of these things is not like the others.
This isn't hard.

Re:Playing back a recording

[MightyYar]

This isn't hard.

I disagree. People are surprised to learn that showing a movie to a bunch of school kids is "a performance". People violate the law all the time and don't even realize it, because you have to be an expert to learn all of the intricacies of copyright law. I really don't understand why we apply it to non-commercial use.

Re:Playing back a recording

[PRMan]

Yeah. Because it's for educational purposes, which is specifically exempted from copyright.

Re:Playing back a recording

[MightyYar]

Good. Now define "educational".

Re:Playing back a recording

[MightyYar]

By the way, here's a 5-part series on how simple copyright is in education.

Re:Playing back a recording

[TubeSteak]

I watch broadcast tv
Private performance.

I record broadcast tv to my computer and play it back later
Private performance.

I record broadcast tv to my computer and stream it to a computer/tablet/phone over the internet
Private performance

I rent an antenna, a hard drive, and bandwidth from a 3rd party and record broadcast tv onto the hard drive so that I can play it back over the internet.
*Second Circuit Court says: Private performance.

Pandora is wondering why this can't apply to them as well.
*The decision is limited to NY, Vermont, and Connecticut.

Re:Playing back a recording

[R3d M3rcury]

I read aloud to my 3 year old niece from her favorite Dr Suess book.
Private performance.

I read aloud in front of hundreds of people who paid to attend, or were otherwise asked to attend that reading.
Public performance.

Agreed. Of course, there's a pretty big gap between your 3 year-old niece and hundreds of people who paid to attend or were otherwise asked to attend.

Take the numbers, for example. If I read aloud to 1 person who paid me to read it, is it a public performance? What if I'm paid to do other things. Suppose I'm a nurse for an elderly person and I'm paid to help him out in the bathroom, cook meals, and read him books? He's paying me, I'm making money from reading him books, but it's only one other person.

What if it's two people--say a husband and wife? How about if it's 32 people in a nursing home and I'm paid to read to them in a group, as well as mop the floors and teach advanced basket-weaving? Those people also pay the nursing home for such things, as well as room and board and medical care.

Re:Playing back a recording

[wierd_w]

The intention was that what the law says is public, vs private, is not what the general public has in mind for that. The added joy of people unknowingly violating that law just underscores this fact, and only serves to show that the definitions used for legal applications are byzantine, and purposefully convoluted to serve a specific economic agenda.

Personally, I feel that the legal system is not supposed to be used in such a fashion; [to create specific legal categories of infringement, specifically to monetize clearly non-economic, and private activities via renumeration of court awarded fees and judgements.]

To me, such activities say two things:

1) There is an influential demographic that is suffering from an entitlement complex, who feels they are entitled to financial compensation for non-economic uses of things they have created, or any time a person other than their sublicensed client in any way accessess that intellectual property. Eg, they think they should be paid if I lend a book to a friend, and other stupid things.

2) this demographic has paid substantial sums of money to cuddle up with politicians, for the express purposes of having these definitions and categories of infringement, and accepted methods of renumeration drafted and signed into law.

I am apt to point out that a supreme court judge asserted that just because one has enjoyed a living performing a certain service for a time, does not mean that the courts are compelled to ensure their continued profit from that service, nor for the wheels of progress to be halted or reversed. (Paraphrased)

In other words, the interested parties lobbying for this legislation do not actually have a legitimate position from which to frame their demands, and the legal definitions in question should never have been drafted.

Re:Playing back a recording

[Anonymous Coward]

but how do I know that I have permission from the copyright holders to view the video?

Re:Playing back a recording

[The Real Andrew]

Am I going to be violating copyright law if I watch it?

Re:Playing back a recording

[Charliemopps]

When "people violate a law all the time and don't even realize it" it's called "untenable" and the law should be struck down.

Re:Playing back a recording

[Stolpskott]

Private. All of them.

An unpublicized reading or performance is a private performance (unpublicized meaning by definition not made known to the public). If the nursing home had advertised the performance using the title of the performed work in any way, as opposed to having "reading time" or "music time" on a schedule, then they would fall uner public performance guidelines.

If you don't make the performance of the specific work known to the public then it is a private performance.

Personally, I would love to come and live in the country you are writing the laws for...
However according to US law,
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.

So the fact that you are not advertising the "performance" is irrelevant. What makes it a public performance is whether it is in a place where members of the public might have a reasonable expectation of being able to go, or whether you are broadcasting it in a way that someone in such a "public" place might reasonably be able to receive that transmission.
Interestingly enough, one of the edge cases in this instance is a party. You sitting with your daughter to watch a Disney film is a private performance. You sitting with your octuplets (8 children born at the same time) is a private performance. You and your sister sitting watching the Disney film, with both your octuplets and her octuplets (2 adults, 16 children) is a private performance. Add a journalist and cameraman from the local newspaper who are there to cover the party, because both sets of octuplets were born on the same day and are now enjoying their second birthday, and where the journo and cameraman happen to be in the room when the film is playing, that is a public performance according to the current interpretation of the rules, even though it is a private party in a private residence, because they happen to be outside the normal circle of social acquaintances of the people at the party.
(I do not have a site link to a case for that, but it happened to my ex-wife and her new husband, just with not quite so many octuplets)

Re:Playing back a recording

[MightyYar]

You can read it. You can set up a lab full of computers and instruct all of the students to read it individually. But throw that puppy on an overhead, and it's a "performance".

Without government rules like this, how could commerce even function?

Re:Playing back a recording

[chihowa]

I am apt to point out that a supreme court judge asserted that just because one has enjoyed a living performing a certain service for a time, does not mean that the courts are compelled to ensure their continued profit from that service, nor for the wheels of progress to be halted or reversed. (Paraphrased)

I know Heinlein said that*, but it sounds extremely out of character for a Supreme Court Justice. A quick Google search didn't turn up anything good, which Justice said that?

There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back.

Heinlein, Life-line (1939)

Pandora needs to change technology to win.

[duckgod]

If Pandora buys a cd(digital music would probably have to wait for another legal victory) and only streams it out to 1 user at a time then I could see this ruling helping Pandora. I doubt this is close to the black magic media distribution that Pandora employs currently. Math is hard but I am thinking it would take a while for this system to be more profitable then the current licensing model.

Re:Pandora needs to change technology to win.

[sheddd]

mmm no... If this ruling stands, all Pandora needs to do is copy Aereo... rent antennas to pandora users for $x/year, and allow them to play live radio or previously recorded live radio, and save their massive licensing expenses.

Re:Pandora needs to change technology to win.

[Jheaden]

Except that Pandora doesn't exactly stream live radio. They generate content streams customized to the listener (or in the case of the genre "stations" specific to that genre). So yeah the closest Pandora could get would be a few million cds and some sort of switching mechanism for the stream.

They pay for access to the content, plus a per play fee. Really don't see how the ruling could be in any way applied to Pandora

Re: Pandora needs to change technology to win.

[cpt kangarooski]

No, that would still be public performance. It's defined in the Copyright Act, and includes performances to only one person at a time:

To perform or display a work âoepubliclyâ meansâ"
(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.

Instead there'd have to buy one CD per user who wanted to listen.

They could save momey by renting them to users. Except that you can't rent music CDs as a rule due to an exception to first sale ( 17 USC 109 (b)(1)(a) ), they might need to create a complicated system of selling and repurchasing discs on demand which would probably not convince a court that it was something other than rental.

Re:Pandora needs to change technology to win.

[The Mighty Buzzard]

Or a $20 50mW FM transmitter, a stripped bit of wire to use as an antenna, and a faraday cage for each user's personal "station". That would put them pretty much exactly where aero is. There are no licensing requirements for FM stations that broadcast under 200 feet in the US and the faraday cage could drop the broadcast range to milimeters. They could even have the transmit/receive antennas on the same circuit board.

Re:Pandora needs to change technology to win.

[camperdave]

Or a $20 50mW FM transmitter, a stripped bit of wire to use as an antenna, and a faraday cage for each user's personal "station". That would put them pretty much exactly where aero is.

Not even close. Aereo is merely relaying an existing signal. Pandora is originating the signal.

Re:Pandora needs to change technology to win.

[cdrudge]

It wasn't CDs, but rather DVDs, but that is essentially what Zediva tried with individual DVDs and players. It ultimately didn't work out for them in the end, although I don't believe that there was final verdict that said what they were attempting to do was illegal. If another company wanted to try the legal challenge, they better have VERY deep pockets.

Uh, why?

[jon3k]

What Pandora does is completely different. Aereo is rebroadcasting a live signal. Pandora is replaying a recorded song any number of times to any number of people. Aereo has an antenna for each subscriber. How in the world is this even remotely comparable?

Re:aereo may need to add forced Regional locks if

[RatherBeAnonymous]

Aereo only takes customers who live in the greater NYC area. Yes, if you are a customer you can access your account from anywhere in the world, but you have reside somewhere that you could conceivably record the same content with an antenna and stream it to yourself. There are other products on the market now that let you do that. Aereo just lets consumers outsources the technology. I expect that as Aereo expands to more cities they will only allow customers to record and stream content from their local stations.