Wednesday, June 25, 2014

The Incremental Approach and Aero

Back in the late 90s when the mp3 format became popular for music listening, I spent some time pondering where the line of illegality was for sharing such files. Before I get into this, please note it was a thought exercise by someone who is very, very not a lawyer.

So me listening to a CD I bought is legal.
Me listening to a CD that I borrowed from a friend is legal.
My friend and I listening to the CD together is legal.
Me ripping a CD onto my computer is legal (there is no data protection on the disk, so it doesn't fall under DMCA protection).
Me listening to a CD I borrowed from my friend after he ripped it is likely not legal, but it's hard to say which one of us would be in violation.
We can presumably play a CD through a computer's speakers and both listen to it. However, if we both listen to an mp3 on, say a networked hard drive, even if we are still in the same room, that somehow becomes illegal.
What if only one of us listens at a time? What if we aren't in the same room? What if we are neighbors listening in different houses? The point is, once you introduce a network connection into the distribution of data, it seems the copyright question goes haywire, even if there are limits on who can access when.

Which brings us back to 2014 and the case of ABC vs. Aereo. Aereo's business was renting an antenna and a DVR to subscribers, one antenna per subscription. Their customers could then access their account to set up when and what channel to record and play back any recordings on their various internet connected devices or watch live. Now it is perfectly legal for me to set up a DVR in my home and record over-the-air broadcasts for later viewing. In 2008 it was established that the so-called "cloud DVR" is also legal. But the Supreme Court has now ruled that Aereo is performing the same function as a cable company and thus subject to the same copyright restrictions as cable companies. And they explicitly state that the differences in how the broadcasts are delivered (e.g. 1 antenna per customer vs. cable's multi-cast to all their customers) do not make a difference.

Aereo was splitting the hair pretty fine in following the letter of the law, and they succeeded all the way up to the high court. But with this reversal, the question now turns to what the effect will be on services that duplicate other kinds of potentially copyrighted data across the internet. What does it mean if one were to put an e-book into Dropbox or a cloud backup service to then access from multiple computers/devices? Is that really different from Aereo's service?

In any case, I have rambled too long here about something better summarized by real journalists (see the article linked above and this further analysis), but it highlights how the rapid rise of networked computers poses a problem to a slowly evolving society. Frameworks like the legal system, the economy, and the government are having to adjust to a more complex and technological reality. And sometimes the answers just aren't going to come easily.

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