Prof. Doug Lichtman, UCLA School of Law
October 10, 2013

Like many readers here, I made mix tapes back when I was in high school.  I would put a blank cassette into my “boombox”; wait for a favorite song to play on the radio; and then record the song on tape.  The result would be a tape that was imperfect, but had character.  I remember, for instance, a tape I made for a then-crush on which I tried to put the Lionel Richie/Diana Ross duet, “Endless Love” – but I misjudged how much room was left on the tape, and ended up recording the truly “endless” version.

Despite my own history with mix tapes, however, I had no trouble condemning Napster when it hit the music scene many years later.  People tried to tell me that Napster was the same thing, a modern incarnation of the same creative, expressive, personal process.  But my response was always to point out that Napster was decisively different because it made sharing possible at a significantly greater scale, with significantly greater efficiency, and commensurately greater economic harm to the copyright industry.  Size, in short, matters.

This week in my copyright class, my students and I talked about the issues raised by copy-shops like FedEx Office (which many of us still remember as Kinko’s), and again I found myself talking about scale and efficiency.  Yes, I told my class, it is likely fair use for a student to take a pocketful of quarters, pump them into a copying machine, and duplicate a journal article, book chapter, or news piece.  But the analysis is completely different when it is an efficient entity like FedEx Office doing the photocopying.  After all, FedEx Office is so good at copying that the very existence of its professional service means that significantly more photocopying will take place, causing more economic harm to publishers whose works are copied without permission.  Besides, FedEx Office’s efficiency is relevant for another reason as well: FedEx Office is an efficient intermediary through which to collect royalties for this sort of copying, something that was much less plausible back when copying was done quarter by quarter, person by person.

Scale and efficiency have been on my mind recently for yet another reason: Dish’s controversial new service where Dish offers to automatically record the full slate of primetime television for its customers, to then automatically cut the commercials from those programs, and finally to leave the entire slate of programs on the customer’s DVR for easy video-on-demand viewing later.  Now, I should admit that I think that even the inefficient, clunky version of that service – namely, my old VCR – likely should have been deemed to infringe copyright.  However, even if the old-school VCR is legitimate, surely the greater efficiency and scale of Dish’s service should render that version impermissible.  After all, the increased scale and efficiency means that even more money is at stake for the copyright industry.  And Dish is perfectly placed to efficiently license the content it needs and thereby ensure that content creators earn a share of the value that their content, combined with Dish’s infrastructure, makes possible.

Aereo fits this same theme.  True, when I was growing up in Ohio, my family had a “rabbit ear” antenna on the top of our television and we used it to catch ABC, NBC, and CBS over the air.  And yes, in theory, I can imagine adding a long cord and putting that same antenna on my roof, and then an even longer cord and putting that same antenna on top of the Empire State Building.  And yes, I can also imagine joining hundreds or thousands of other families in putting antennas on top of the Empire State Building together, and in hiring a company to do all that lifting and climbing and installation for us as one group.  But at some point the scale and efficiency of the activity has changed so substantially that the analogy must falter.  Someone who wants to defend Aereo might be able to do so on the merits, but the attempt to do so by analogy must be rejected.  Here again scale matters.  Here again efficiency distinguishes the examples.

And note that my point in this short Essay is not to say that scale and efficiency are in any way bad.  Quite the opposite, scale and efficiency are clearly socially desirable traits, in that they make possible the increased use and enjoyment of copyright-eligible work.  My point instead is that scale and efficiency likely also mean that certain activities that are permissible in their awkward forms should nevertheless be deemed impermissible in their efficient versions.  Let efficient entities negotiate permission, and let those negotiations ensure that copyright holders, too, benefit from newly expanded use of their materials.