Why Johnny Can’t Stream

By James Grimmelmann

Posted on September 6, 2012


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My latest essay for Ars Technica, Why Johnny Can’t Stream: How Online Copyright Went Insane is now online. From my perspective, it’s an attempt to tie together my blogging on cases like Aereo, Zediva, and ReDigi and to illustrate what they have in common. From a legal perspective, it’s the story of how of the public performance right has gradually made less and less sense over the last few years. And from a business perspective, it’s about why startups are buying thousands of tiny antennas, building the world’s longest video cable, and devising increasingly outlandish technologies. Some excerpts:
 
Suppose I could offer you a choice of two technologies for watching TV online. Behind Door Number One sits a free-to-watch service that uses off-the-shelf technology and that buffers just enough of each show to put the live stream on the Internet. Behind Door Number Two lies a subscription service that requires custom-designed hardware and makes dozens of copies of each show. Which sounds easier to build—and to use? More importantly, which is more likely to be legal?
 
If you went with Door Number One, then you are a sane person, untainted by the depravity of modern copyright law. But you are also wrong. The company behind Door Number One, iCraveTV, was enjoined out of existence a decade ago. The company behind Door Number Two, Aereo, just survived its first round in court and is still going strong. …
 
The post-Cablevision cases are almost comically formalistic about technical details. Instead of looking at the front-end user experience, they focus on the back-end hardware and software. Sooner or later, someone is going to argue to a court that it makes a difference for copyright purposes whether a video stream is decoded by the main CPU or by a dedicated graphics card—or some other distinction equally remote from anything the typical viewer thinks about when trying to catch up on last week’s episode of Breaking Bad.
 
This technological formalism has real costs and real benefits for all concerned. On the upside, Lawful Good technologists and investors need bright-line guidance. Imagine being a cloud computing vendor, watching the file locker litigation and worrying that one judge could scuttle your entire business model. Or worse, imagine being a cloud computing customer facing the risk that one judge could consign your files to Davy Jones’s locker.
 
Give it a read!
 
The preceding is re-published on TAP with permission by its author, Professor James Grimmelmann. “Why Johnny Can’t Stream” was originally published August 30, 2012 on The Laboratorium. The Laboratorium publishes under the Creative Commons License.

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