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Amicus Brief Although the immediate question presented in this case is whether Internet-based retransmission services are eligible for the compulsory license made available by Section 111 of the Copyright Act, this statute does not exist in a vacuum.
Although the immediate question presented in this case is whether Internet-based retransmission services are eligible for the compulsory license made available by Section 111 of the Copyright Act, this statute does not exist in a vacuum. Rather, Congress has established a comprehensive statutory regime governing the retransmission of broadcast television through several laws that span two titles of the United States Code. In particular, Section 111’s compulsory license is available only to a “cable system”—a type of broadcast retransmission service that is also subject to, and defined by, a host of statutory requirements enacted by Congress in the 1992 Cable Act. When the Copyright Act is read in conjunction with the Cable Act, as it must be, along with other provisions of the Communications Act and a long line of judicial decisions, the unmistakable conclusion is that Defendants’ service cannot be a “cable system” within the meaning of the Copyright Act.
Of greatest importance to Congress’s legislative framework governing retransmission is the requirement that any entity retransmitting broadcast television—regardless of the technical means—first obtain consent from the owner or primary transmitter of the television programming. By interpreting the Copyright Act’s compulsory license to make it available to Internet-based retransmission services, the lower court undercuts that legislative framework. Although cable systems (and satellite carriers) are eligible for a compulsory copyright license for which they do not need explicit permission from television program owners, under the Communications Act they must still generally obtain a broadcast station’s consent before retransmitting its signal. To obtain this consent, cable companies must generally pay an agreed upon amount to broadcasters on top of statutory copyright royalties. For all other entities that wish to retransmit broadcast television, no compulsory copyright license is available; they must bargain for the right to publicly perform television shows with the shows’ owners.
Defendants seek to sidestep both of these obligations by concocting a supposed loophole in federal law—engaging in a sort of regulatory arbitrage between the Communications Act and the Copyright Act. Thus, Defendants claim that they are both eligible for the compulsory copyright license available to cable systems, and also that their service is technically configured to escape the reach of the Communications Act’s provision empowering broadcast stations to decide whether to consent to a cable system’s retransmission of their signals. Not surprisingly, and as the text and purpose of the Copyright Act and the Communications Act reveal, Congress never authorized this ploy.
Amicus Brief "This case is not about broadband deployment or competition, nor local autonomy. It is about the FCC’s claim of sweeping power and its essentially unchecked discretion to govern the Internet..."
“This case is not about broadband deployment or competition, nor local autonomy. It is about the FCC’s claim of sweeping power and its essentially unchecked discretion to govern the Internet, including the supposed power to preempt decisions made by elected state lawmakers—without Congressional authorization.
To reject the FCC’s reinterpretation of Section 706 as an independent grant of authority is not to say that nothing more need be done to promote broadband deployment and competition—but to affirm two facts about the Telecommunications Act of 1996 (“1996 Act”). First, Congress intended Section 706 as a command to the FCC to use the abundant authority granted to it elsewhere in the 1934 Communications Act (“1934 Act”) to promote broadband deployment to all Americans. As the FCC said in 1998:
“After reviewing the language of section 706(a), its legislative history, the broader statutory scheme, and Congress’ policy objectives, we agree with numerous commenters that section 706(a) does not constitute an independent grant of forbearance authority or of authority to employ other regulating methods. Rather, we conclude that section 706(a) directs the Commission to use the authority granted in other provisions, including the forbearance authority under section 10(a), to encourage the deployment of advanced services. Advanced Services Order, ¶ 69 (emphasis added)”
Second, rejecting the FCC’s reinterpretation means affirming that Congress intended “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation,” 47 U.S.C. § 230(b)(2); see also 47 U.S.C. § 230(a)(5) (“The Internet and other interactive computer services have flourished, . . . with a minimum of government regulation.”)…”
Amicus Brief "Respondent (“Aereo”) deploys a system of tiny antennas and large computer servers to capture, transcode, and retransmit live television broadcasts online without authorization or, indeed, any contractual relationship with copyright holders at all..."
“Respondent (“Aereo”) deploys a system of tiny antennas and large computer servers to capture, transcode, and retransmit live television broadcasts online without authorization or, indeed, any contractual relationship with copyright holders at all. The inelegant complexity of its retransmission system is entirely a function of Aereo’s efforts to evade copyright law; it makes no sense from a technological standpoint. Despite its efforts to engineer its way around the Copyright Act, Aereo cannot escape copyright liability. By providing unlicensed television broadcasts to its subscribers—a subset of the public—Aereo plainly violates the exclusive public performance rights held by copyright holders in its unauthorized transmissions.
Although Aereo’s technological machinations are cleverly designed to create sufficient ambiguity as to their legality, Aereo’s business model is clear: to offer the public the same online access to broadcast television programming that is readily available elsewhere, but without incurring the cost of compensating copyright holders of that programming. In so doing, Aereo effects a simple— and illegitimate—wealth transfer from copyright holders to itself, without creating any appreciable countervailing consumer benefits. In so doing, it undermines the ability of copyright holders to enter into voluntary transactions to license their content and thus subverts the constitutionally and congressionally protected right of creators and their licensees to market their creative works…”
TOTM Lawyer licensing should not be completely abolished, but it should be made radically easier and cheaper by abolishing the requirement that lawyers attend law school . . .
Lawyer licensing should not be completely abolished, but it should be made radically easier and cheaper by abolishing the requirement that lawyers attend law school to sit for the bar exam, and by only requiring passage of the bar exam for those who handle court cases. Legal redress should also be made easier by allowing more cases to be brought in small-claims courts.
Read the full piece here.
