Hawwwtttt SCC copyright action part final: downloads and streams, oh my!

Well hello there. We’ve come to I guess what would be part 3 of my coverage of the pentalogy of Supreme Court cases on copyright. It will most likely be the final post, as the other two cases deal with non-internet stuff (education and movies, yawn) so really, who gives a crap? But Rogers v. SOCAN is chock full of plump internet juiciness, so let’s dive in!

If you recall last time (if you don’t, go back and read it, I’ll wait), the Court found that downloading a video game was not “communicating to the public” as per s. 3(f) of the Copyright Act. If it had been, there would be extra royalties to pay to music copyright holders for the music in those video games. I think I should quote myself (because obviously I’m a genius) because what I wrote last time is the key to the case we’re discussing today:

But the Court notes the important difference (to this internet lawyer at least) between a stream (be it live video streaming or audio based) and a download

So in this case, on one side we’ve got The Usual Suspects – Rogers, Bell, Shaw, and Telus. On the other side is SOCAN, the collective rights society that wants money for copyright owners in music that you’re probably sick of hearing about by now. The Usual Suspects run online music stores (like this) where users can download or stream music they buy on their ‘puters and cell phones. SOCAN said these downloads and streams were “communication to the public” as per s. 3(f) and there should be royalties under that section. The Copyright Board set a tariff (Tariff 22.A) for such royalties. The reason I mention the name of the tariff is that lawyers may recognize it from the Tariff-22 case, a Supreme Court case from the original copyright trilogy of 2004, which in a specific way was a precursor to this case. But I digress; lawyers will do that.

ANYWAY, the Copyright Board and the Federal Court of Appeals said that sure, what the hell, the downloads and the streaming over the intertubes were in fact communication to the public and subject to tariff. This ended up in the Supreme Court (obvs) and the Supreme Court had just one issue to decide, whether in fact these downloads and streams are communication to the public and thus subject to tariff. Well in fact their job was cut in half by the ESA case from my last post, where it was decided that the downloads were not in fact communication to the public, and thus not subject to tariff. All that was left is to decide whether the streaming music is communication to the public (sick of that phrase yet?) under s. 3(f).

And the Court answered with a rousing Marv Albert-like “Yes!!!1!” In fact, unlike in ESA, the Court was unanimous here (there was one difference of opinion, but it was about procedural “standard of review” BS you don’t give a shit about). Justice Rothstein wrote the decision, and it seems pretty well-reasoned out. After talking about the standard of review business, he turns to the appellants’ first argument, that streaming can’t be “to the public” because photocopiers were not communication to the public in the famous CCH case (which I’ve written about before in the context of fair dealing). Right, because music streaming and photocopiers are exactly the same. I’m being glib as usual; it wasn’t exactly the photocopier that was not “to the public” in CCH, it was the fax transmissions of pages made on that photocopier. Because faxes and streaming music are the same thing of course.

Justice Rothstein didn’t buy that argument, and he didn’t buy any of the other arguments from The Usual Suspects either. They argued, most specifically, that because the streaming was initiated by the user, i.e. a “pull” model, this could not be “to the public”, which is usually applied to a “push” model, i.e. the sender initiates the communication. Justice Rothstein called BS on this – by making the music available to all, the sender has every intention to transmit it “to the public.” If you were to limit “to the public” to push technologies, you’d bar everything that is user-requested:

None of these telecommunications would be considered as being made “to the public” simply because the actual transmission occurs at the initiative and discretion of the consumer to accept the invitation to the public to access the content.

Not to mention that if you take this view, you destroy the whole “technology neutral” aspect of copyright that we’ve been talking about. The Usual Suspects also argued that the communication of the stream can’t be to the public because it is a one-to-one transmission, as opposed to one-to-many. Justice Rothstein called BS on this too, and cited another judge who wrote, with respect to ringtones:

If a wireless carrier were to transmit a particular ringtone simultaneously to all customers who have requested it, that transmission would be a communication to the public. It would be illogical to reach a different result simply because the transmissions are done one by one, and thus at different times.

After citing another judge who drew the same conclusion with respect to music files, Justice Rothstein comes in for the big finish:

Following the online music services’ business model, musical works are indiscriminately made available to anyone with Internet access to the online music service’s website. This means that the customers requesting the streams are not members of a narrow group, such as a family or a circle of friends. Simply, they are “the public”. In these circumstances, the transmission of any file containing a musical work, starting with the first, from the online service’s website to the customer’s computer, at the customer’s request, constitutes “communicat[ing] the work to the public by telecommunication”.

CRITICAL ANALYSIS TIME! You know I am loathe to do this, because my opinion means diddly squat (well, except for CBC and CTV who seem to trust me), but I find something quite interesting about this decision (to me at least). While Justice Rothstein’s reasoning is pretty solid, what strikes me is that there is absolutely no discussion about the difference between downloads and streams. If you read his reasons, the reasoning could very easily apply exactly the same to downloads. Look at this for example:

The works in the catalogues could as a result be transmitted to large segments of the public – if not the public at large. (…) Indeed, the appellants’ business model is premised on the expectation of multiple sales of any given musical work. Achieving the highest possible number of online sales is the very raison d’être of online music services. The number of actual transmissions depends only on the commercial success of a given work. The necessary implication of this business model is that there will be a “series of repeated … transmissions of the same work to numerous different recipients” (CCH (SCC), at para. 78). The conclusion that a communication “to the public” occurs is consistent with reality.

Well sure, but that exact same reasoning could apply to downloads. I don’t think it’s a coincidence that Justice Rothstein wrote for the minority in ESA that would have said downloads are communicated to the public. Look at the ringtone quote above – those ringtones were downloaded, not streamed. Look at the big finish quote above – replace “customers requesting the streams” with “customers requesting the downloads” and the reasoning is exactly the same. You and I both know downloads and streams are not the same from a technology point of view, but that distinction is completely lost in this reasoning. So from a results standpoint, downloads and streams get treated differently, but there was no real distinction in the reasoning that got those results. I’m just sayin’.

The practical end result being of course is that you should buy downloads and not streams, because they will have one less tariff attached to them and thus might be cheaper. Does that make sense to you? Of course not, but that’s what we’ve got now.