I speculated last week that Aereo, now styling itself as a cable system with a statutory license to retransmit local broadcast TV, was preparing to file an accounting with the Copyright Office along with what I said would be a “not-too-onerous” royalty payment.
Now comes word that Aereo have done just that. What’s more (or actually a lot less) is exactly how non-onerous those royalty payments work out to be. If we’re to trust Aereo’s math—and given the scrutiny they’ll get here I think it’s a good bet we should—the combined royalty owed for 2012 and 2013 combined, across Aereo’s several metropolitan area systems is a whopping $5,310.74.
That number’s from a July 16 letter from Jacqueline Charlesworth, General Counsel and Associate Register of Copyrights at the US Copyright Office. The letter is a receipt of sorts, informing Matthew Calabro, the Aereo accountant who presumably submitted the filing, that the office will hold it and the royalty fees tendered (but will not process them) pending a determination of the company’s status.
The letter is remarkable in a few ways. These include GC Charleworth’s remark that her office, relying on an administrative interpretation of the 2nd Circuit’s WPIX ruling, views licenses under Section 111 as only available to entities that are “regulated as cable systems by the FCC”. This adds—or might, it’s actually difficult to say—a layer of administrative law complexity to what was already a quite complex issue: Can Aereo claim a Section 111 statutory license under the Supreme Court’s ruling in ABC v Aereo? Was SCOTUS’ determination there that Aereo was functionally a cable system ratio decidendi or obiter dicta?
I’ve written before—in the context of the copyright office’s erroneous registration of copyrights in, of all contexts, yoga routines, registrations since revoked—that there’s sometimes an odd sort of insouciance about the Copyright Office’s reading of the law, including 17 USC, and the federal judiciary’s interpretation of it.
The second paragraph of GC Charleworth’s letter follows in this tradition, citing WPIX v IVI 691 F.3d 275 (at 284) as supporting the proposition that “Cable Systems” need to be regulated by the FCC (which seems an irrelevancy and counter to the actual definition of “Cable System” found at 17 USC 111(f)(3)). Here’s that paragraph.
In fact the relevant part of the WPIX opinion was that satellite television systems, (you know, systems transmitting over continental-scale areas from space),weren’t sufficiently localized to be “cable systems” under §111. That opinion—in the very next line—cites to the Copyright Office itself: “[T]he Office retains the position that a provider of broadcast signals be an inherently localized transmission media of limited availability to qualify as a cable system.” (citing 56 Fed. Reg. 31595 (July 11, 1991)).”
This seems if anything to be a factor in Aereo’s favor, the company having taken great pains to operate on a strictly local basis, only sending content to IP addresses within the theoretical broadcast radius of the original station and requiring its subscribers’ payments be made via credit card billed to an address within that limited area.
More later as events warrant. For the moment, however, the moral seems to be this: “Never imagine yourself not to be otherwise than what it might appear to others that what you were or might have been was not otherwise than what you had been would have appeared to them to be otherwise.”
Last week, in a joint letter to US District Court Judge Alison Nathan of the Southern District of NY, the adversaries in the Supreme Court’s recently decided ABC v. AEREO case outlined what each saw as the next appropriate steps in their litigation in the SDNY, suspended pending SCOTUS’ June 25 ruling (a PDF of that opinion is here).
Victorious above and writing first, the broadcasters expressed their desire to get on with the business of consigning Aereo, along with all its little antennae, to communications history. ABC and their fellow plaintiffs however, felt they’d been thwarted in this by Aereo’s refusal to quit without at least one last argument.
It’s an argument Aereo previously rejected and haven’t made before. But its one they say the Supreme Court itself handed them in its opinion: “We’re a cable company.”
I’ve written before about Aereo’s gimlet-eyed reading of current law and precedent in carefully engineering its business model. They’re no less sharp here. From their portion of the joint letter to Judge Nathan:
"Aereo has been careful to follow the law, and the Supreme Court has announced a new and different rule governing Aereo’s operations last week. Under the Second Circuit’s precedents, Aereo was a provider of technology and equipment with respect to the near-live transmissions at issue in the preliminary injunction appeal. After the Supreme Court’s decision, Aereo is a cable system with respect to those transmissions."
What’s the difference? It’s pretty consequential. Under current US copyright law (at 17 U.S. Code § 111) cable systems are given a statutory license to retransmit locally-broadcast content provided they comply with certain filing and actually-not-too-onerous royalty payment requirements. It’s my guess Aereo’s filling out those forms, opening their checkbook, and otherwise gearing-up to flip the switch reconnecting all those little antennae.
Will it work? ABC and the other plaintiffs claim to be frustrated by what they term Aereo’s “shifting and inconsistent positions”. Aereo’s response is that its the law that has changed (with the 2nd Circuit’s Cablevision decision for-all-intents-and-purposes overruled).
Not being final because they’re infallible, but rather infallible only because they’re final the Supreme Court can do this, of course. And the lower Federal Courts are bound to follow.
The question is whether Aereo itself can benefit from the reclassification having not argued it at any time below/before (even “in the alternative*” as they would have almost certainly been allowed and were occasionally encouraged to do).
Brighter civil procedure lights than I disagree on this point. We’ll have to wait and see.
[*An argument in the alternative goes something like this: I categorically deny having at any time owned a dog, let alone a vicious paper-boy-mauling one. If, however, it’s somehow shown that I did in fact own a vicious paper-boy-mauling dog, he was at the groomer’s getting a shampoo on the day in question.]
SCOTUS hears oral arguments tomorrow in ABC v. Aereo. It’s a fascinating case with potentially the most far-reaching consequences for the television industry since the Betamax decision in 1984.
Having read the decisions below and many of the briefs for the current case my instinct tells me this one just may go against the broadcasters.
Aereo’s been incredibly canny in building its operations and user experience by essentially using that ‘84 Betamax decision—together with the 2nd Circuit’s ‘08 Cablevision ruling—as a framework for their technical design schematics.
That, and 1) the potential difficulty of crafting a narrow ruling against Aereo that wouldn’t kill much else bedsides; and 2) the wildcard broadcasters’ use of the “public airwaves” represents will make for an interesting argument.
Many, myself included, know the Pulaski Skyway from television on Sunday nights.
Of my countless real world trips on that rickety strip, more amusement park ride than highway, a few stand out:
By cab early one morning from the East Village to Newark to take the New Jersey bar exam; In my beat-up Honda, freshly sideswiped that very morning, racing to my mom’s deathbed; Cruising in the rain in Paul’s old DeVille convertible, coats across our laps on account of a bum seal where the windshield met the header.
Court documents filed today in the U.S. Southern District Court of New York state that Richard Prince and his gallery, Gagosian, are free of any claim of copyright infringement from French photographer Patrick Cariou.
Another “fair use” case and an interesting outcome, especially in light of the recent Goldiblox settlement.
Without getting into the details—and there are many, factual as well as legal/technical—of either situation there seem to be two broad lessons from both:
1) When using another’s work try to avoid slandering or disdaining their efforts and [the appearance of] disproportionate commercial gain, and
2) Don’t for a minute rely on a naïve distinction between art and commerce.
Beasties/Goldieblox settlement; Plus my pre-settlement draft post “Following up on Goldieblox/the Beastie Boys and “Girls”“
Word comes today of a settlement between Goldiblox and the Beasties in which the toy company has agreed to publicly apologize for their actions and to make payment “based on a percentage of its revenues, to one or more charities selected by Beastie Boys that support science, technology, engineering and mathematics education for girls.”
Its a clear win for the band and hopefully claws back most of the company’s profit arising from the undeserved and ill-gotten publicity/advertising Goldiblox had cynically engineered. And the best part is that these payments now really will go to supporting girls education and achievement.
Also maybe interesting: Before getting news today of the settlement I’d drafted a followup post, which I’d last edited a few weeks back. Here it is pasted below as I left it then:
In an earlier piece I posted not long ago on a copyright dispute over toy company Goldieblox’ use of the Beastie Boys’ song “Girls” in a commercial for their toys I committed to following up on a few issues that I hadn’t had the chance to address at the time. Here goes.
Recall that I’d first thought to post on the situation because it seemed so odd, odd even in the often-strange context of entertainment-industry disputes. Spotting and preventing this sort of odd stuff is at the core of my regular work as an entertainment lawyer so the elements were all familiar. Nevertheless, on first viewing Goldieblox’ commercial I was stunned at the audacity of the thing, by the unambiguous, apparently willful copyright infringement the piece seemed to be. My initial impression has only been confirmed as the matter has developed further.
But willful infringement alone isn’t all that uncommon or especially remarkable. What’s really strange here is the inference I’m forced to draw given the combination of the following things. And I should note here again that what follows is simply my opinion as a working entertainment attorney:
So Goldiblox does the following:
1) They act: Goldieblox releases a clearly copyright-infringing commercial, and simultaneously releases[ITALIC] a press release characterizing the commercial as a progressive and girl-positive parody of the Beasties’ original work, which they take pains to characterize [LINK] as unreconstructed misogyny of the “Our Gang” he-man-woman-hating variety [LINK]. This is slandering another for the purpose of praising oneself. It takes balls.
2) They sue: Then, before any action is taken against them, Goldieblox proactively sue the Beasties for a declaratory judgement that their commercial is a “fair use”. In doing so they exponentially increase the attention paid their commercial. I think they not only reasonably anticipated this to occur but in fact counted on it happening. This was their aim after all. I think a fair reading of their complaint [LINK] reveals their legal action is to be a fairly meritless sham. To my mind at least an attorney familiar with copyright infringement litigation and the limits of the “fair use” defense in a commercial context couldn’t possibly have expected it to succeed. This is cynically using the courts to drum-up business. And it takes balls.
Happily the Beasties were well-represented, both at the bar and in the world. Their attorneys filed a response [LINK] to Goldieblox’ suit that calls them out for much of the above, pointing out that Goldieblox has (in this case and others) infringed copyright, defamed original artists, and—in this case at least—hauled innocent and generally good-guy artists into federal court. Goldieblox has dealt here, in the words of the Beasties’ reps, with “unclean hands” (see my discussion of “balls”, above).
But I think the Beasties representation in the real, non-legal world has also been important. Goldieblox cynically ginned-up outrage over the original “Girls” to appear progressive and to sell toys. People who knew the track from when “Licensed to Ill” was first released (or who took the trouble to find out more about it) mostly saw the smear for what it was.
So good luck, I guess, to the jerks at Goldieblox. They’re in a big mess of trouble and its strictly of their own making.
"The books in your library are more important than the numbers on your balance sheet."
RIP Bill Drenttel. For those unfamiliar there’s a good tribute to him up now on Design Observer.
Marsilio, an independent publishing company I helped run in New York for much of the 90’s used Bill’s firm for some of our more important work. Among these was a book I edited and—despite what the colophon might say—also translated with the brilliant Eugenio Bolongaro, Science in the Kitchen and the Art of Eating Well by Pellegrino Artusi.
That book’s wonderful cover, which I clearly recall first seeing in Drenttel Doyle Partner’s studio, is reproduced above.
Ok, so Lena Dunham’s on board. Still, however canny and rumpelstiltskinian she’s been of late can she really make Jughead a thing again?
Don’t get me wrong. Refreshing stale IP can sorta work sometimes. Can’t think of an example right now outside superheroes but it must have worked somewhere else before. Right?
And then there’s this. The NYT quotes Archie CEO Jon Goldwater:
“My marching order [sic], so to speak, is you have a blank canvas,” he said. “I’m going to let Roberto [Aguirre-Sacasa, the new chief creative officer at Archie Comic Publications] be the guy to blow the whistle and start the race.”