Not really. They rented you exclusively an antenna at their location, and you can use it to watch over the air TV. There was no rebroadcasting technically, which is how they hoped to get around the law.
That's the only difference between Aereo and the original CATV companies. Original CATV was one giant antenna on a hill piping the broadcast to homes that couldn't get the signal; this is thousands of antennas intelligently provisioned on a hill piping the broadcast and providing DVR functionality to homes that don't necessarily want to deal with using the crappy tv antenna -> computer hardware available.
I've not used Aero and haven't heard their argument but I bet their business model is they rent antennas to customers. I'd be curious to know where that argument failed because surely I could create a business that rented antennas to customers and installed them on houses. Why does it matter the location of the antenna?
Either way this is bad for the consumer, bad for technology, and bad for innovation.
I imagine the argument fails because it's obvious to anyone who looks at the company's offerings for two seconds that the "rent antennas" thing is just an excuse, and that their actual business model is that they charge for streaming TV.
I don't think anything is wrong with renting an antenna and streaming the signal. What's illegal here (not that I think it should be, but it seems clear enough that this is what the law says) is providing a streaming TV service without obtaining the appropriate licenses. The implementation details on the backend are irrelevant.
I don't think you'd have any trouble setting up DJB's Internet-Accessible Antenna Rental if that's what you actually offered. Stick some SDR equipment on the antenna and give me access to the raw bitstream. If I want to watch TV with the service, then I can tell your equipment to tune to the appropriate frequency, and then decode the bitstream locally. But if you set up DJB's TV Streaming without paying any license fees, and you just implement that by receiving signals from an antenna, it's a different beast even if it looks the same technologically.
Of course you can put an antenna on your roof. You can probably also put an antenna on your neighbor's roof. Your neighbor cannot get into the business of rebroadcasting TV signals, though.
Your intent to figure out exactly where the line is drawn is a failure that geeks have when going about the law. The law isn't written for a robot to unfailingly interpret. You won't get a good answer for the same reason the tribes making headphones out of coconuts won't get a good answer for how exactly they need to wear them for the cargo planes to come back.
You are allowed to put an antenna on your roof. If your neighbor allows you to, you can put the antenna on his roof. You can even rent the antenna. You are executing a private performance. You cannot subscribe to a streaming service that "rents you an antenna" unless the service licenses retransmission of the broadcaster's content.
What is it about GP's scenario that makes it a private performance? It sure looks like he's "subscribing to a streaming service that 'rents [him] an antenna'".
I think the court has found that the "distribution for pay", i.e. "Cable TV" aspects of aereo's service outweighs the "antenna rental" aspects, and that makes it charging for a public performance.
If you rent an antenna on top of the Empire State Building, digitize the signal, and set up your own means to stream it over the internet to your house in Peoria, that is probably a private performance. If you effectively sell someone access to the stream (like a Cable TV company), that is a public performance.
The SC ruled that the number of antennas or where they're located is not the heart of the issue. Aereo effectively supplied a data stream with broadcast content to subscribers (just like a cable tv company) without licensing the right to supply that content. The issue is commercial rights, not technological means. If you personally lease space for an antenna, and engineer a means to get it to your TV to watch, that's ok. If you sell access to the content stream, you are a cable TV company and have to pay redistribution license for the content.
Aereo effectively supplied a data stream with broadcast content to subscribers (just like a cable tv company) without licensing the right to supply that content.
This is also what ESB would be doing by letting people rent antennas and streaming servers.
ESB would be renting antennas, and then what you do with them is your own business.
Aereo is selling streaming TV service that just happens to use antennas in the backend.
You might say, it's all the same in the end from a technical point of view. And you're right, but the law doesn't care about the technical point of view. From the legal point of view, Aereo is selling TV streaming, and must comply with laws for TV streaming.
I think the service itself would need to be changed as well. I think if they explicitly rented antennas and that was reflected in both their marketing and their actual service (e.g. providing a raw bitstream for a user-selected frequency rather than providing a video stream for a user-selected TV channel) then they'd be alright. This is just what I've been able to understand of the situation and I'm not an expert and could be terribly, terribly wrong, of course.
With this ruling renting an antenna will basically never be a valid workaround. The argument is that because Aereo is the one dealing with the antennas, they are the ones doing the broadcasting.
Now, if the equipement were sold instead of rented, and obstensibly Aereo was only providing electricity to the antenna/DVR setup, then things might have been different (at least it was implied in the oral arguments). But obstensibly the service being provided by Aereo was one of broadcasting, not of hardware hosting.
You could say the exact same thing about Cablevision and their 'cloud DVR', but they won their case before the Supreme Court. Aereo was relying on that decision to enable a similarly inefficient system (1 antenna and DVR per subscriber) for broadcast TV.
I agree, and crazy workarounds like that aren't very nice either.
However, I don't think the two decisions are inconsistent. As I understand it, Cablevision was already paying license fees for rebroadcasting, and the case was just about exactly what they could or could not do with that license. Aereo's case is about whether they need to pay license fees at all.
As I understand it, one of their goals was to not be considered a broadcaster. Rather, it's more akin to a wire in that it's one-to-one, not one-to-many.
I am eager to hear some expert commentary on the ruling on what the side effects will be.
That's one version. The other is that you simply watch the show in near-real-time, just as you would if the camera were sitting in your window.
IANAL, but felt like the DVR functionality really clouded the case and possibly skewed it away from Aereo. Harder to claim you are merely an antenna when you are recording, too.
Under the changes that Congress specifically made to the Copyright act I do believe the court ruled correctly. Congress moved in 1976 to protect broadcasters from Cable companies doing nearly what Aereo is doing, capturing and sending by another means the broadcast of a TV station.
Congress at the time did not like how the courts were ruling in favor of the then fledgling CATV services. Courts ruled that capturing and sending the shows to cable viewers was not a violation as were not acting as "performers". Congress changed that they were, effectively stopping cable from providing local and regional channels. Well Congress showed who was truly doing this by adding in all sorts of new compulsory fees for carrying local channels. So CATV can and in some cases has to carry local content and pay for it.
TL;DR
Congress changes to Copyright in 1976 at the behest of broadcasters versus CableTV is the basis for the ruling. The original broadcaster owns all rights unless otherwise assigned.
The opinion compares Aereo's use of tiny antennas to cable companies' use of one big one. They argue that since Congress passed a law back in the '70s to define the cable companies' practices as rebroadcast, that law should be read as also defining what Aereo does as rebroadcast.
If that's true, then why is their home page filled with talk about "watch live TV" and not a single word about renting an antenna?
When I look at their offerings, I can immediately see that they're selling a streaming TV service and it just happens to be implemented by receiving radio-frequency broadcasts. Supreme Court justices aren't idiots, and they can probably see that too.
Justices Breyer, Roberts, Kennedy, Ginsburg, Sotomayor and Kagan were the majority.
It isn't over since the case now goes back to the lower court, but Aereo can no longer argue they are the same as a person putting an antenna on their roof.
Can I ask which country that is? It strikes me as odd to hear such a domestic US political rant from someone who doesn't live here. (or maybe you do live here now and are just comparing it to where you're from)
1. "Obamacare" is an implementation of the Heritage Foundation's[0] health plan from the early 90s. It's "liberal" in the same sense that any Republican can be said to be "liberal."
2. Roberts has a deep and wide judicially conservative record. He cannot be called "liberal" in the context of American politics; it's not even up for debate. The man and his judicial practice is as conservative as they come.
3. I really don't see why it matters. The justices' political leanings have nothing to do with whether or not their decisions are "correct" or not (although it may provide insight into why they decide one way or another).
Doesn't change the fact that other conservative justices (Scalia, Thomas, and so on) voted against it and liberal justices voted for it. So Roberts could be said to be the most liberal of the bunch. The Aereo vote is pretty much the same as Obamacare vote, except Kennedy who is both anti-Obamacare and anti-Aereo.
Well, that 'fact' isn't very factual. The 'conservative' justices dissented from the majority opinion, but that doesn't mean that their rendering would have made Aerio's practices legal.
In a nutshell, the dissent would have also ruled against Aerio, just for a different reason than the majority. This sentence from Scalia's dissent should put things in perspective:
"I share the Court's evident feeling that what Aereo is doing (or enabling to be done) to the Networks' copyrighted programming ought not to be allowed."
Remember, Obamacare is the health care plan the Republicans proposed after rejecting any kind of single-payer universal plan. That the Republicans subsequently also opposed their own health care proposal speaks more to their basic coherence than their political ideology, per se.
I would not describe Roberts as liberal, per se. However, I would think that someone has got some dirt on him. No way to explain his voting record, otherwise.
Well, the problem is that Aereo probably could not have prevailed at SCOTUS, because SCOTUS looks to precedent. In this case, their interpretation of the precedent itself (Copyright Act of 1976) was accurate, even if that precedent is out of date in our eyes. If you want SCOTUS justices to innovate, you need to challenge the precedents at their fundamental level, or else point to other precedents that should invalidate or challenge them.
Bear in mind that the function of the Supreme Court isn't to propose new laws (legislate); it's to rule on existing laws. By its own mandate, the Supreme Court does not serve an innovative function in government. It serves an examination and arbitration function. If we want to change anything here, we'll have to start in the other branches of government, or else bring a case that sufficiently challenges the Copyright Act.
> Well, the problem is that Aereo probably could not have prevailed at SCOTUS, because SCOTUS looks to precedent. In this case, their interpretation of the precedent itself (Copyright Act of 1976) was accurate, even if that precedent is out of date in our eyes.
You are confusing enactments (things like the Constitution and statute law, like the Copyright Act) with precedent (prior rulings of courts applying the same law). These are fundamentally different things, thought the court looks to both
Sorry, was a misnomer on my part. I was using "precedent" in the broad sense, i.e., to mean a preexisting reference point. But you're quite right in that the term has a very specific legal meaning, and I should have been more mindful of that. (IANAL, and I should probably preface a lot more of my legal discussions with that.)
Nevertheless, I think my point still stands. Court needs to find, sort, and prioritize reference points essentially.
Its amazing that the left and the right can't agree on anything, not even it being illegal to lie on gun applications, but once IP is tossed in the game they all fall on some pretty strong protectionist postions.
I'm not making some big statement here, but it just goes to show that guys like Lawrence Lessig and the EFF keep losing because they have so few allies in government and have the most powerful enemies, the various deep-pocketing IP abusers like tech firms or Disney.
What now? Back to our DRM-laden lives with no silver lining I guess. Shame that the profit on mass entertainment trumps all rights. I wonder if my Slingbox is illegal now. Probably not, supposedly this decision is narrowly written, which is a welcome change from the big sweeping conservative-led majority decisions of late.
Intellectual property law is the pride and joy of our legal system.
Really.
Patents, Copyright and Trademarks are all American inventions that have spread everywhere in the world. Many Americans think it goes too far, but in the fraternity of lawyers and judges, IP rules.
It's not true. IP law existed before the American revolution, and the US in fact initially refused to sign the major worldwide convention on IP law (Berne).
I believe that's the key insight. "Intellectual property" is good (in the sense of generating lots of work) for the legal profession. Judges tend to rule towards things that benefit the legal profession(s), and against things that don't benefit those profession(s).
However, you're wrong in point of fact. Copyright is an English law thing, a statute law, not a common law. Look up "Statute of Queen Anne". It's from 1710. Patents seem to be a British or Venetian thing. The USA almost didn't have a patent or copyright system, Thomas Jefferson was quite against them. For a long time, the USA allowed immigration on the basis of possessing some skill or patented idea - the USA was an "IP Outlaw". Not too surprisingly, this coincides with the USA's period of industrialization.
"Intellectual Property", the idea that one can own ideas, is just a bad idea, from an economic standpoint.
Reading your post it almost seems like Berne is an US city.
The Berne Convention was developed at the instigation of Victor Hugo of the Association Littéraire et Artistique Internationale. Thus it was influenced by the French "right of the author" (droit d'auteur) (...) Before the Berne Convention, national copyright laws usually only applied for works created within each country. So for example a work published in United Kingdom by a British national would be covered by copyright there, but could be copied and sold by anyone in France. (...) The Berne Convention followed in the footsteps of the Paris Convention for the Protection of Industrial Property of 1883, which in the same way had created a framework for international integration of the other types of intellectual property: patents, trademarks and industrial designs.
People who regularly watch the court know that judges falling into "Left" and "Right" camps are the exception, not the rule. There are typically splits were some of the "Left" judges agree for reason X and some disagree for reason Y, and/or some "Right" judges agree for reason Z and disagree for reason W.
And that's a good thing. This isn't a sports game where I should root for "my team." The judges shouldn't start from the end position they want and work towards that.
The endless 5-4 decisions of late tend to contradict that. Most judges are predictable. Roberts and Breyer being an exception, and slightly less predictable.
5-4 decisions tend to be the ones that make news. For the most part, the judges on the court agree with each other. In the the current term through June 18, 2014, only 14% of Supreme Court cases were settled in a 5-4 vote.
I went looking through those 5-4 cases to see if were along the left/right line. Only 4 of the 8 had Alito, Roberts, Scalia and Thomas on the same side.
(The second had Thomas writing the opinion and Scalia writing the dissent. That's pretty rare.)
EDIT duh, that's what the color-coding was for. Oh well.
> 5-4 decisions tend to be the ones that make news.
Decisions on issues that have high political salience tend to be the ones that make news; there is currently something of a correlation with political salience and 5-4 split decisions on the courts, since Justices positions are most ideologically (rather than legally) consistent on points that were politically salient at the time of their appointment, and the issues with the strongest political salience also are often relatively consistently salient over an extended period of time, and since the court splits at or close to 5-4 on a lot of enduringly-salient issue areas.
But plenty of 9-0 issues on issues that have current salience make news, and 5-4 decisions on which the justices are split but there isn't a great deal of political salience often aren't treated as any more newsworthy than any other decision.
I think you are confusing "left and right" with "mainstream Democratic and Republican politicians". These categories don't really overlap all that much.
Aereo is a company that setup 1000s of DVR's with 1000s of antennas on a New York City rooftop. They lease access to these DVRs for roughtly $5/month and the DVRs stream to your computer.
In the US, broadcast channels are free over the air. However, there is a law that says if cable companies want to retransmit the broadcasts, the networks can charge the cable companies.
Is Aereo "retransmitting" the broadcast, or just renting personal antennas? That is what the Supreme Court was deciding.
The Supreme Court is wrong- the reason cable companies are treated as a 'public' performance of a work is that their distribution medium is shared- any subscriber can tune into that broadcasting of that work over a shared common carrier where one copy of the work is transmitted and many subscribers can view it. Aereo is different in that it only transmits the signal captured to a single subscriber at a time, removing the 'public' nature of the performance and hence invalidating their argument. How absurd.
Is that really a necessary part of 'public performance' according to law? You can show movies for pay if only one person is in the audience? I'm not sure that argument works.
The Supreme Court is not able to be wrong on a matter of U.S. law. It gets to decide what that law means, not you.
It's not the decision I'd hoped for, nor the one I'd make, but it's nonsense to claim that it's "wrong". All we can do about it now is to get the law changed.
> The Supreme Court is not able to be wrong on a matter of U.S. law. It gets to decide what that law means, not you.
The Supreme Court decides interpretations of law, but the law itself (as written or as interpreted) is quite capable of being wrong. Law does not determine morality.
That also does not mean that SCOTUS is "wrong". A law can be "wrong" (subjective), and the SCOTUS will still have to uphold it if it is constitutional.
They certainly can be wrong. They just can't be overruled by anyone except future members of the same court. In this sense, they are not always right, but they are always correct. If they were always right, there would never be dissenting opinions from 8-1, 7-2, 6-3, or 5-4 splits.
We just pretend that they, like the Catholics pretend for their pope, are infallible. At some point, you have to let the matter be settled in a final and lasting way, otherwise nothing can get done. It is sometimes better for a matter to be settled in an unsatisfying way than it is to have any uncertainty remaining.
A ruling from the ultimate arbiter is not an ethical mandate. While one can hope that their decision is compatible with and motivated by moral values and ethical principles, it could also be the result of political expedience or a bit of bad pork in yesterday's supper.
It isn't right or wrong. It is simply what has been decided by our most prestigious professional arbiters.
If you don't like what they decided, you can accept it and move on, or start petitioning a legislator in an effort to make their decision obsolete.
...Or, there is something else you could do. It rhymes with "abhorrent". As long as we're not concerning ourselves with "right" or "wrong" here, we could simply accept the precept that if the courts fail to deliver acceptable results to the litigants, they might seek them out by other means. It really depends on how mad Aereo is about the fact that a private business interest was able to use government power to destroy a potentially disruptive competitor.
I would guess that the vast majority of Aereo's business expenses were a direct result of attempting to comply with the law, and its apparent loopholes. The service could be replicated at lower cost by one antenna per broadcast station, local resources to convert the signal into compressed video files, and redundant servers in multiple safer jurisdictions. The successor could simply take subscriber fees to ensure that a particular station is recorded during a particular interval, and the resulting video is seeded for a minimum period of time. Now that they know that their entire business model is ruled illegal, there is no particular reason to comply with any part of the law... other than their respect for the law.
Aereo may choose not to do this, but they have proven that there is a market for it, and nothing excites the black market more than a proven demand for an illegal good or service. What's more, the black market equipment will be virtually indistinguishable from legal gear, so long as the operators take even the most rudimentary steps to cover their tracks.
The people who used Aereo aren't just going to go back to cable. They are simply going to move from a provider that could be sued out of existence to one that is effectively invisible, or withhold their money and wait for something else worth spending it on. I understand that the cable companies had little choice but to attack Aereo, but they have to understand that they created the market conditions for Aereo to appear. As long as they exist, they will be playing whack-a-mole with every new service that tries to provide television services better than cable.
Aereo's setup is absurd. Placing hundreds if not thousands of identical antennas on a rooftop, capturing identical signals and sending them, individually, to users.
That's expensive and inefficient. The only reason they did it was to exploit a potential loophole in the current law - and now the Supreme Court has effectively closed that loophole.
Not really. There's such a thing as the "spirit" of a law, and the technical details of a law.
The intention of the changes to the Copyright Act (which Shivetya has detailed better than I can[1]) was to stop basically what Aereo is doing, albeit back in the 1970s with cable companies. The legalese reflected the technology of the time. Aereo found a technical loophole that allowed them to continue to do it, but all the while they were violating the spirit of the law.
I don't think "technical loophole" is the best description. They were trying to make the case that they were providing a long antenna cord which is at least sorta reasonable (and something the cable companies could not claim).
Antennas are legal. Manipulating airwaves to be played on a TV is legal. Long antenna cables are legal. Putting an antenna on my neighbor's roof is legal. Paying my neighbor rent for such a thing is legal. Storing broadcast content is legal. Paying for devices to do such a thing is legal.
And breaking down a cable company in the same way works consistently too. Antennas are legal, long cables are legal, paying your neighbor to set things up is legal, sharing an antenna with your neighbor is not legal.
My vague understanding of the sprit of the law that allowed broadcasters use of the public airwaves was that it required for the individuals to be able to make use of the transmissions.
Aero by many is seen as a tool to make use of those transmission on public air waves therefore in the sprit of the law.
It isn't scaling horizontally at all. You scale horizontally to increase your capacity, installing one antenna for every user has zero to do with capacity and everything to do with legality.
I maintain that having a multiple of identical components in a system that perform the same duty is horizontal scaling. There are many reasons to scale horizontally, and I'd say increasing capacity is exactly what Aero would be interested in, not to mention fault tolerance. My career is based on building distributed fault tolerant systems, which is potentially why I think I understand their approach differently than you do.
But yes, horizontally scaling systems comes at a cost, sometimes they are more inefficient, sometimes they cost more, but in the long run if it helps you meet the goals of the business it shouldn't be illegal.
Their approach was not to create a distributed fault tolerant system (but boy am I glad I'm talking to someone with such expertise with them) - it might have been a neat side effect of what they did, but it wasn't the reason for doing it.
They said themselves that the reason each user has an antenna is because it was what allowed them to legally operate. Their hardware setup was entirely based around a loophole in existing law. Ironically, it's awful horizontal scaling, too - if a single antenna breaks there is no backup, the user assigned to it loses their TV signal.
They give two antennas for each user (one for live stream and one for DVR). And since they were still adding new users, it is reasonable to think that they had, at any given time, more pairs of antennas than current customers. If one antenna failed, I imagine they had a backup one they could switch to.
The antenna is cheap, but that's not the whole cost. You need the 8VSB reception stage, and then a slice of a server to transcode that 8VSB into H.264 or whatever format they chose. Then you also need disk space for the DVR stuff.
It's not the array of antennas that boggled me the most, it was the racks and racks of servers encoding the exact same show hundreds or thousands of times in parallel.
Yes- they are renting me an antenna in the locale the performance is being broadcast, and providing connectivity to that antenna. That is not a loophole- that is the letter of the law- that an individual can receive a broadcast performance of a work, but that it cannot be duplicated. It meets the letter of the law- unlike a system that received the broadcast signal, captured it, and provided the same copy to many users, which would violate the 'public performance' section of the law. Renting me an antenna makes it my individual private antenna, removing the public aspect of the performance, and making it perfectly legal.
It's the letter of a law written in the 1970s, when streaming technology like this didn't exist. No-one had even conceived of the idea that you would group hundreds of antennas together and stream them across a wide area network to users.
The spirit of the law as passed was to stop cable companies capturing and rebroadcasting over-the-air TV signals without compensation. So it shouldn't be too surprising that the Supreme Court made the judgement they did.
It's quite simple: when this law was created, was Aereo's use case considered? If the answer is 'no', then you can expect the law to be refined to cover it at a later date. Odd legal loopholes don't get to stand just because they've been around for a while.
"Oh, the law says no cars in the park but I'm driving my pick-up truck through the park! Ha ha, I win, I talked the computer to death like Kirk did on Star Track!1"
To add to this, they didn't see a distinction between transmitting and performance, and felt the law was clear about the distinction between the role of the viewer and the performer. What was made clear was that one person could not hold both roles.
On if such a performance was private or public: the decision said that it was a moot point as the "commercial objective" of Aereo was the same as if it were public. The law as it stands did not intend to separate private and public performances.
the definition of "public" in public performance is not about who the broadcast goes out to, but about the relationship between the broadcaster and the broadcastee.
If I invite 100 people to my house to see a movie, it's not a public performance (supposedly) because they are coming as members of my social circle. If I instead showed at a movie theatre and charged for it, and the same 100 people showed up, then it would be a public performance because those 100 people came as members of the public.
Here Aereo broadcast to customers as members of the public. Because Aereo owned the equipment, they were the ones doing the broadcasting (in the oral arguments one of the judges commented on how if instead they sold the equipment and just provided hosting, the position would be much more defensible).
But, like what many others have said, the intent of the law is really what matters, and the definitions of public performance are much more about intent than about technical implementations.
> The Supreme Court is wrong- the reason cable companies are treated as a 'public' performance of a work is that their distribution medium is shared.
No.
What makes a cable company "public performance" is that the company is selling services to the general public in an arms-length transaction. The shared nature of the transmission medium is irrelevant.
They could send streams directly to individual subscribers using IPTV, as AT&T does with U-verse, and it would still be a public performance.
That is why Aereo needed the individual antennas to try to take advantage of a perceived loophole. Aereo with one big antenna would not have made it to the Supreme Court, because it would have been so obviously in the wrong.
The Supreme Court is unfortunately trapped. As the opinion notes, the Court once took a position very like Aereo's, way back in 1968, on the subject of shared "community" antennas (Fortnightly v. United Artists).
The Court's position today is that Congress more or less immediately amended the Copyright Act in response to that decision, and now the law as written no longer supports the Court's former position (and thus no longer supports Aereo's position).
Seems like, because Aereo isn't just a hardware renter but also an integrated SaaS provider, they were treated as such.
The court opinion talks in terms of user interaction with menus on the site to select shows. We're kidding ourselves if this works anything like "hardware rental". If it were, it would feel more like AWS.
So if Aereo were just in the antenna rental business, and some other entity were in the cloud DVR business, and consumers paired them together it would be just fine?
Edit: having read the decision, it seems there were companies that provided antenna services back in the 60's, and congress amended the copyright act to forbid them. The ability for Aereo subscribers to choose which material is transmitted is key to Aereo's argument.
Well, if Aereo would provide antenna and SDR that end-user could control (and a third party decoding software would decode the video, huh) - would it be the same?
It's not so much as quality of the UI but rather what the service actually is. I can black-box Aereo and it looks pretty much like a rebroadcaster. Aereo isn't renting me an antennae, not in the way AWS rents me a server.
Maybe they should be in the hardware selling business instead.
Redesign their system to have discrete units. Aereo users would then buy the boxes (similar to that Hauppauge one linked elsewhere in this discussion) and pay a monthly service fee for power and bandwidth. If they are done with Aereo, they can have the box shipped to them for a small fee, or sell it back to Aereo.
The user will have complete and direct control of the TV box. Then there should be no problem.
Hardware costs will be higher though, and maybe the service ends up costing more overall. It would still be worth it for some people, like my friend who (while he likes sports in general) really just wants to see all of his favorite sports team's games from another city. I know of other people with similar use cases.
The decision is limited to the question of whether Aereo violated the networks' "exclusive right" to "perform" their programs "publicly."
The dissent (Scalia, Alido, and Thomas) believe that Aereo did not "perform" at all. They believe that when an Aereo subscriber logs in and clicks the play button, that the subscriber, not Aereo, is doing that performing.
EDIT: Please note that the dissent would not have necessarily ruled that Aereo's service was legal. The dissent merely believes that Aereo's service complies with this one specific part of the Copyright Act. From the dissent: "[Our] conclusion does not necessarily mean that Aereo's service complies with the Copyright Act. Quite the contrary. The Networks' complaint alleges that Aereo is directly and secondarily liable for infringing their public performance rights and also their reproduction rights."
So this decision is designed to be as tight as possible. The Court is trying to limit the effects of its decision by constraining it to this one claim by the networks. From the language of the dissent, I have a hunch that even if this one aspect of the case had been decided in Aereo's favor, that some other aspect would have resulted in its service being declared illegal.
Scalia: "I share the Court's evident feeling that what Aereo is doing (or enabling to be done) to the Networks' copyrighted programming ought not to be allowed."
I'm reading the opinion now, and I would not have guessed that those particular justices would have made the ruling they did. Does anybody have insight into how this decision fits with the ideological views of the justices?
Did it? The majority opinion was joined by 2 of the 5 conservative justices and all of the liberal justices. Three conservative justices dissented based on their reading of the law, which didn't seem particularly ideological.
The conservative Justices generally favor looking at the plain text of the statute, while the liberal Justices are more willing to look at the broader implications and view a situation in functional terms. So it's unsurprising that the liberal justices, and Chief Justice Roberts who is less textualist than the other conservatives, were willing to look past the technicality Aereo was relying on to see that it was functionally equivalent to any other television streaming service.
Scalia's dissent likens Aereo to a "photocopier or VCR." He says the court's decision "will sow confusion for years to come."
More from Scalia's dissent: "The Court vows that its ruling will not affect cloud-storage providers and cable-television systems, but it cannot deliver on that promise given the imprecision of its result-driven rule."
Aereo is not violating anything but they should have prepared for something like this. Absurdity is common when you are trying to provide similar service to the consumer in a better way without creating monopoly.
>Aereo is not violating anything but they should have been prepared for something like this.
In what other sense could they have been prepared? They fully expected to end up in the courts, likely through the supreme court, and planned appropriately. They lost the case, but it doesn't seem to be for lack of preparation.
Sorry, I'm still confused what you mean by "be prepared before it happened". Are you saying they should have pursued a different strategy/loophole around copyright law? That they should have realized they had no chance and not pursued funding? I'm not trying to be argumentative, I just genuinely don't understand what preparation you're saying they should have taken.
For the record, I work at a company with a lot of former Navic Networks employees (the company Chet Kanjoia founded before Aereo) so there's plenty of talk about Aereo and I'm pretty familiar with their model.
I can't imagine myself at their position so all I can give my honest opinion not judgement. What I am saying is that they should have suspected that. It is not my fully informed opinion and it can't be. And I can fully understand your point too. That's pretty much it.
I never liked the Rube-Goldbergian design of the Aereo system. It was clearly more complex than necessary, for the sole reason to try to find and fit through a loophole in the law.
To support that would set bad precedent, I think--both legally and technologically. Even if you hate copyright, I'd argue that this ruling is probably better in the long run because it clarifies the situation and the fight.
From that perspective I think the decision is essentially correct, although I'm sure it will be unpopular here.
However, I did read the syllabus, and there is some language in there referencing viewer participation in a public performance, that seems worrisome. But I'm not a lawyer, so I will be interested to see informed discussion of whether the specific legislation and precedents were applied correctly, and what implications were created by this decision.
One man's loophole in the law is another man's strict conformance to the law. It looks to me like Aereo read the text of the law very carefully, and did what they could to provide for a consumer demand.
The only problem is that Aereo didn't get enough money fast enough to "create an ecosystem" or whatever the phrase is when you mean "monied interest not afraid to lobby for their cause".
Yes, they've stated that they have no Plan B. I would have to disagree with them though. There are always options. The ruling essentially invalidated the live stream portion of their service. I believe that there is still a huge market for cloud DVR. I rarely watch live TV these days, and if I do it's because there was no other option.
..."And we have not considered whether the public performance right is in- fringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content."
Because it's not about "the cloud" in general. It's about specifically the rebroadcast of television radio signals, concerning which there's a substantial body of law created to govern the activities of cable TV providers.
In other words, the SC just defined Aereo as a cable company, when they wanted to be a cloud services company.
Really? I've never had problems getting to the SCOTUS opinion PDFs, and that's pretty impressive since the traffic must be intense right after a ruling is released. And it would be difficult to use a CDN because the decisions CANNOT be released early.
I imagine this is a minority opinion here, but I don't see a problem with this decision.
Tech people like to treat laws as rigid rules that would be written in a formally specified language if only legislators were capable of such a thing. But they're not, and by design.
It doesn't make sense for a law to be written such that receiving on one antenna and sending the result to your users is illegal, but receiving one an antenna farm all located in the same spot and sending the result to your users is legal.
Do we really want to live in a country where the obvious solution is illegal but an insane workaround is legal? I don't want a precedent set where it becomes standard for laws to be bypassed with expensive and technically pointless workarounds. If we want to allow companies to receive TV broadcasts and stream them over the internet, we should do so. If we don't, we shouldn't. A situation where they're only allowed to do it if they have 10,000 separate and unnecessary antennas is absurd.
Personally, I think it's ridiculous that a TV station can broadcast their signal free of charge to anyone capable of receiving it, but if a company wants to receive it and then pass it along to somebody, they have to pay a fee. But the problem is with the ridiculous law, not with a completely reasonable interpretation of it.
Your points about the way law works are exactly where technical people often run into trouble when they reason about the law.
Given that the TV broadcasters are paying for the right to broadcast (often gigantic amounts of money), I don't see a problem with preventing an Aereo from free-riding on that privilege. YMMV.
Why do they pay for the right to broadcast, though? Because they want people to watch, right? Isn't receiving their signal and transmitting it to more people who can watch it more easily and with higher quality doing them a service?
If you look back before cable TV, broadcasters transmitted their signal and the only people who could watch it were those with suitable equipment within range. Broadcasters competed to get as many people as possible to watch. Each new eyeball (preferably in pairs) meant additional revenue for them with no additional cost.
Then comes cable TV. In addition to access to new channels, it also provides the benefit of being able to watch regular broadcast channels even when you couldn't receive them over the air. That means more viewers for the broadcast stations, and thus more revenue. Why, then, should broadcast stations get paid for distributing their signal to more people, which is what they want anyway?
It's clear to me that this is what the law says, and since the Supreme Court's job is to interpret the law, it also seems clear enough to me that they made the right decision here. But it doesn't seem like a very good law.
The really interesting question is the implications for future precedent/innovations. The ruling says "But this difference [Aero's technological setup] means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into “a copy shop that provides its patrons with a library card.”
In other cases involving different kinds of service or technology providers, a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act. But the many similarities between Aereo and cable companies, considered in light of Congress’ basic purposes in amending the Copyright Act, convince us that this difference is not critical here."
What this seems to leave open is the question of whether a company that was e.g. a generic cloud service with various features and functions, among them the ability to rent a mini-antenna and stream recorded data from it to your computer, would still be infringing. It suggests the infringement is largely due to the way Aereo positioned and marketed itself to customers - the common sense reality of the service overrode the technological loophole they attempted to exploit.
The user involvement bit is addressing the Cartoon Network case regarding Cablevision's remote DVR architecture that Aereo is based on.
Cablevision designed a remote DVR system that made transient, user-specific copies based on the user's pressing a button on their set-top-box remote. In their defense against Cartoon Network et al., Cablevision made the "volitional conduct" defense that Scalia talks about in the dissent here- essentially, that the user who pressed the button was responsible for making the copy.
Cablevision won at trial and on appeal in the Second Circuit.
The biggest difference between the Cablevision case and the Aereo case is that Cablevision has and pays for the broadcast licenses that Aereo was trying to avoid having to obtain.
I find the use of "innovation" here irritating. There's nothing "innovative" in 2014 about a service that streams TV over the internet. The only thing "innovative" about Aereo is its legal strategy of exploiting a loophole in the law.
I won't concede that point, but even assuming you're right: there's nothing "innovative" about the business model of distributing in-demand content for profit without compensating the content creators.
"Exploiting a loophole in the law" - does that phrase really mean anything? Aereo did their system in a way that very carefully conformed to the law. The bizarre system that resulted is a reflection of the contorted, illogical, false-to-fact nature of copyright law, more than "exploiting a loophole".
There's nothing "contorted" or "illogical" or "false-to-fact" about the copyright law in this case. The studios spend a lot of money to make this content. Users want to watch this content. To redistribute this content to users, you have to pay money to the people who created it. There is a narrow exception for free over the air TV. Aereo tried to shoehorn their internet streaming service, which is functionally no different than something like Hulu, into this narrow exception. The Supreme Court basically said: "if it quacks like a duck it should be treated like a duck."
The problem is Aereo is charging for this service that circumvents the system and pays nothing back to redistribute the content.
Contrast this with the lesser known, but competing service offered from Syncbak.
Syncbak does the same thing as Aereo, but rather than circumventing the existing networks and content providers; those are Syncbak's paying customer base.
The advertisers already paid for content to be distributed. The broadcasters aren't even missing out on theoretical revenue cause no subscriber pays for over the air tv. If anything they could increase ad revenue claiming more viewers.
I'm missing something... Cause I don't see why broadcasters are against Aero at all. Is it cause cable companies pay broadcasters for content and people think Areo will cut into that?
You're missing that broadcasters transmit to a select geographical location, so they can still sell the transmission to cable and satellite networks. By making it cheaper to watch those channels outside of the areas covered by OTA broadcasts, they're making it easier for current cable subscribers to "cut the cord".
Aereo makes new users sign up with a credit card linked to a zip code within the OTA broadcast range of the metros that they operate in. The users then get the channels that are available in that area. See https://www.aereo.com/channels
Theoretically Aereo makes it more expensive to watch these channels(but easier and more reliable) than a one time purchase of your own antenna.
If Aereo were ruled legal today, the cable companies would figure out tomorrow how to duplicate Aereo's position and avoid paying the broadcasters any fees.
By statute, broadcasters can choose whether a) local cable companies are required to carry their networks [which is why public access still exists], or b) to negotiate for the rate, which lets the cable company walk away if they cannot come to terms.
>The problem is Aereo is charging for this service
To me that's like saying Sony who charges $150 for an outdoor digital antenna, RCA who charges $80 for a signal amplifier, and the installer who charges $500 to rig it all properly should all pay the content owners because they enabled me to watch the freely available content.
I could pay Aereo a small monthly charge or I could modify my house at great expense and end up with the exact same outcome. I don't see the difference.
I think this is key "To redistribute this content to users". The redistribution is not that far from what's currently OK right now, though. Is it illegal (right now) for one to record (using an antenna) on to a TIVO and then to watch said recording over the internet for yourself?
There is 1 antenna per user.
There is 1 recording per user (Aereo is not recording a single instance of desperate housewives and then muxing that out to everyone).
It is over the network.
Other than not owning the means of reception and means of storage, I don't see much of a difference between this and in home recording.
The difference is obvious: when you're home recording, you're doing it for yourself, while Aereo is doing it for others. The fact that it's using 1 antenna/recording per user is an irrelevant technical detail.
It's still you who are recording, not the 3rd party. If I purposely hit someone with my car, the car manufacturer can't be blamed, but if I tell my driver to hit someone and he does, shouldn't he be blamed?
Oh, I would never suggest that. I think what Aereo does should be legal. But judges are supposed to uphold the existing law, not what they think it should be.
Not anymore than I'm driving through my driver. Aereo controls what gets recorded, not the user. They're not an agnostic tool that can be used for any purpose, like a VCR.
What's the difference between me clicking on my remote to tell tivo to record for me than me clicking on a button in a web page telling aereo to record for me? It's still being done on request, no?
Aereo controls what gets recorded, TiVo (the company) doesn't. They're not selling an agnostic tool, they're selling the recording of a particular set of channels.
Not sure that this is true from a technical level, but from a customer level, I actually choose the shows to be recorded in a similar fashion that I would use TiVo. Aereo only records what you schedule to be record when it comes to their DVR portion of the service.
How does Aereo control what gets recorded? I click to record a show in the interface. That tunes the antenna to that channel at that time and records an individual recording for me.
Choosing where to place the antennas largely affects the who can sign up for the service. Antenna placement does not cause me clicking "record channel 4 at 7:30 pm" to become "record channel 7 at 9 am".
Don't forget that while users want to watch video entertainment, quite a lot of users have no specific preference as to what they watch. Each consumer has no more than 24 hours in a day to devote their undivided attention to something.
Studios are in a competitive environment. Not only do they have to fight other current studios for monetizable customers, they have to compete with the entire corpus of existing works. Fringe has to compete with X-Files. Law and Order: New Episode has to compete with Law and Order: Rerun.
In order to make money from customers, there must be an intact distribution path between supplier and consumer. In the world of physical goods, you cannot sell a Chinese widget to Joe Merica without a cargo ship, a stacktrain, an intermodal truck, a big-box store, its parking lot, and the roads between it and Joe's house or business. All that has to be paid for. It is completely unreasonable for the overseas manufacturer to expect that he be paid by all those links in the supply chain for the privilege of carrying the goods.
The manufacturer has to pay them a portion of what he earns from Joe on the sale, because without them, he cannot get Joe's money at all. The transport network provides value to the manufacturer because it increases the potential size of his market. Likewise, the manufacturer provides value to the transport network by giving it something to move. Neither one can even try take the whole pie, or it ceases to exist.
The distributor has to pay the supplier. But the supplier also has to pay the distributor.
In the case of broadcast television, the problem of who pays whom is partially resolved by advertising. Advertisers pay the supplier for access to their customers' attention, and the supplier can therefore pay distributors in proportion to the number of customers they can provide.
This is why broadcasters pay so much for licenses. Over-the-air radio broadcasts can bring in a huge number of customers with relatively low infrastructure investment. As long as they are paid by advertisers on a per-viewer basis, there is no reason why they should be getting any additional money from anybody for rebroadcasting rights... except one.
If the rebroadcaster is not providing the same number of consumers for the advertisers as for the entertainment content, the supplier is not getting paid for them. Enter the commercial-skipping DVR. The advertising model breaks down. The advertisers have to assume that every person not watching a show live is skipping their ads, so they only pay for the live audience.
And so castles made of sand fall in the sea eventually.
If any necessary part of the supply chain is not paid for, the money dries up for everyone. And the advertisers are paid with statistics. Aereo probably could have made this go away simply by offering up timestamps and button presses, to identify the number of customers actually watching the ads.
> There's nothing "contorted" or "illogical" or "false-to-fact" about the copyright law in this case.
The whole thing is contradictory. If the broadcasters broadcast for free over the air and local cable companies retransmit to local customers for free because it increases customer exposure to the broadcaster's advertising, that would be consistent. If over the air viewers had to pay to subscribe and broadcasters also charged cable companies to retransmit, that would also be consistent.
Allowing viewers to watch for free over the air but charging money if you watch via a cable wire is an illogical contradiction that the broadcasters successfully lobbied to have codified into the Copyright Act.
It's illogical, but not in a way that's fatal to copyright. If the broadcasters have control of the content, they can license its usage downstream as they see fit.
So it's stupid, but not self-contradictory. The law can be enforced with no contradictions.
> So it's stupid, but not self-contradictory. The law can be enforced with no contradictions.
Until you have a technology which is neither over the air transmission nor cable TV and there is no logical way to classify it as one or the other because the original distinction had no intelligible justification.
So, what's the maximum length of cable I can between my antenna and my tee vee, and not be in violation of copyright law?
The problem I have with a "quacks like a duck" test is, in analogy, "Your honor, it sounded like a coot to me". That is, it's not a test I can apply by myself. I have to go ask The King of All Duck Sounds if it's a duck, a coot, a widgeon or maybe a grebe.
And that's fine, if we're all interested in a society where we get permission to do anything. If that's what we are going to have, I just want those permissions to extend to all, and for Lee Greenwood to be banned from singing "Proud to be an American". Otherwise, we're going to end up with a de facto aristocracy and underclass situation. Which is prima facie bad, legal or not.
The concept of "loophole" seems to be a loaded way of saying "specification in the law with which I disagree".
We hear all the time about people taking advantage of tax loopholes, for example. Yet these very loopholes are generally designed-in, to push people into a particular behavior. For example, I could pay less tax this year if I had solar cells installed on my roof. Would you call this means of avoiding taxes a loophole?
Modern politics is, as much as anything else, about finding ways to coerce people into the behavior you want. We set up huge taxes on tobacco, for example, to try to cut down on smoking. We help pay back student loans in order to get people to take up teaching. But most of us wouldn't criticize someone for becoming a teacher, saying they're taking advantage of a loophole in student loan agreements.
I can't see a principled way to draw a line in this, other than to simply accept laws for what they are, and similarly accept those who conform to the law as "law-abiding".
The solar panel example is not a loophole. It is a feature. A loophole would be an unintended side effect of designed behaviour. People who pass laws have intent; the courts interpret the meaning of the law and try to divine that intent; a loophole is where a law was passed to prohibit a behaviour but was poorly drafted and leaves a gap for someone to carry on doing the otherwise prohibited behaviour.
I agree that drawing a line is tricky. Certainly people are law abiding unless they are not obeying the law. But that doesn't stop me asking if people are obeying the letter and spirit of the law, and forming an opinion based on the result.
No, the phrase "loophole in the law" does not mean anything anymore. There may have been a time when it was fairly used to describe tax cheats but things are not so black & white now.
Yes, it does mean something. Laws have intended effects; they are a mechanism to achieve some goal. "Exploiting a legal loophole" means finding a way to conform to the mechanism itself, but avoid that goal.
Maps typically describe their purpose honestly and plainly (e.g. The Americas circa 1805). The "honest and plain" intentions of the laws produced in the US are rarely provided.
"Exploiting a loophole in the law" - does that phrase really mean anything?
For the general public, sure, all citizens may advocate for different laws. In the context of a Supreme Court decision, it's much less clear. Is the court really charged with deciding what the law should have been, if only those idiot legislators hadn't mistakenly put in yet another loophole? (Aside: does anyone really think these are mistakes?) Surely the court would be on firmer ground interpreting the laws as written.
I disagree. To be honest Aereo's service was about as reliable as your average antenna is (read: not reliable.) To me it felt like I was renting a really large extension cord for a cable. One that I need because I live in a basement apartment and even with 60 dollar antennas I get spotty reception at best. Aereo was more consistent but the quality was that of what you would expect from an antenna. It didn't feel like someone was recording 1080p HD quality from cable and then streaming it to me. Cable is not just crummy antenna quality that is then piped to the home. They get high quality from the channels.
I get better quality video from my antenna than through cable. In my experience the tv station uses less compression than the cable company. And since the switch to digital OTA video the picture has been rock solid.
I've had this experience in both Columbus, OH and Phoenix, AZ.
Broadcast DTV usually looks better on an antenna than on cable.
I recently gave a pair of rabbit ears to my mother-in-law and we were amazed at how much better the picture quality was. She's lucky, howver, to live about a mile or two from the sticks. Most people need a better antenna.
Cable HDTV is often heavily compressed so they can fit hundreds of junky channels into a limited pipe. Particularly for sports where there is fast motion and fine detail, the difference is night and day.
So, I just spent the last two months working out the details of how to put a digital cable channel on a hotel cable headend. I have some clarification of what may be going on here.
Cable headends tend not to have very much compression equipment, sometimes they have stuff used for feeds local to the headend, but usually the compression happens at the originating facility. For something like CNN, this is at their studio. The signal with that original compression is encrypted, uplinked to the satellite and then received off the satellite by receivers at the headend. It comes out of that receiver as a compressed digital signal called ASI, which is MPEG2 compressed video over SDI. It is then typically fed into a demultiplexer/multiplexer that will combine or separate it into different streams and then it is fed into a QAM modulator. For ATSC the same is fed into a 8vsb modulator (or something like that). For encrypted systems it is fed into a encryption unit before being fed into the QAM modulator. The key here is that each video stream is not recompressed even when it is remultiplexed.
The issue may be that of signal strengths and associated error rates and how that is reflected in encrypted streams. Typically encryption cases degradation to be reflected poorly in the signal compared to unencrypted signals.
Well, for the first time in a long time I agree with something Scalia says...Congress is the body that opens loopholes in the law, and it's their job to close them. Not the court's.
That's crazy. The whole point of copyright law is that you can get the same content in different ways, some of which are legal [edit:authorized] and some are not. Now the Supreme Court says that all ways of getting content are the same?
very sad day for consumers and tech, lots of possible business models broken.
I'm not seeing it. The decision seems to specifically covering only the business model used by Aereo. That is, charging users for a service that retransmits television content without a license to do so.
I've mentioned this before on HN, I'll say it again: Aereo should now do a pivot, becoming a hardware reseller of TV-signal-receiver/streamer devices like this one: http://www.hauppauge.com/site/products/data_broadway.html - it can stream either over your local Wi-fi, or across the interwebs so you can watch remotely when you're out of the house. Broadband speeds are a bit slow, but they're getting there (slowly) - until then, rely on your friend who has Google fiber or something :). Basically you have Aereo service without the service fees (except the initial hardware cost and internet service cost). I'm especially in favour of this because it's putting back the power in the hands of the end customer -- finally, they own the device, they're not relying on the cloud, they're not facilitating another rentier operation.
Slingbox seems to have a strong position in this market. It's tougher to stream video from a person's home than from a data center. Most homes with broadband have limited upload speed that makes it difficult to stream good quality video. I'm hoping newer compression algorithms such as HEVC will make it possible to get decent quality even on connections with less than 1 Mbps upload bandwidth.
Sony was selling exactly this thing....9 years ago. They made LocationFree base stations which would stream your TV signal to your PSP anywhere in the world over the internet. That was incredibly impressive for 2005.
Does it even need to stream from the house (versus uploaded earlier than requested on my device) ?
Am I as a consumer allowed to store my DVR material on hosted storage then have that stream to me later?
Then can my cloud provider cache and de-dupe content on their environment so that they don't need to have 4 copies of the same episode in cache?
I wonder, can a new company sell set top antennas that perform better than others, because they aggregate signals and can enhance the quality of your dvr material?
From the link: "Any program which they can watch on their TV set, such as live prime time TV programs and sports events"
There are two reasons I paid for Aereo:
1. I cannot receive a digital TV signal over the air where I live.
2. I wanted just local channels, but did not want to pay another $30-50/mo for other channels that I'm not going to watch.
The Hauppauge product solves neither of these problems.
Relocating the receiver to a metropolitan area greatly increases the number of people who can watch the content, and ads, that are being broadcast.
As much as I do not agree with Justices Roberts or Scalia, I agree with their dissent in this case. This decision makes no sense from a legal (or technological) perspective.
Aereo should pivot to be a colocation company specifically for this equipment. Sell the device to the end user for $100, charge $8-12/month for "colocation".
What next? Illegal for a user to colocate their own antenna equipment?
I have the right to receive over the air broadcasts, using public spectrum that broadcasters have been permitted to utilize. Where my antenna is, who owns it, and how I retrieve, view, or store that content is irrelevant.
Sometimes, the law is wrong. This is one of those cases. Aereo attempted to comply with the law, and was told they failed. Fine. Keep fine tuning your business model until you're just within the confines of legality. That is how the law works, no?
The first person to do so will be a sucker. Seriously, look at how, why, and by whom laws are written. Ignore the marketing, whether it's from politicians or the pundits who parrot them.
When the intent of the law is to take something that's legal to do personally, and make it illegal to outsource, I'm not bothered by going against it by removing juuuust enough outsourcing.
Nope - it's the unlicensed transmission that this decision covers. The opinion actually states that a cable company (with its licenses) would be able to offer the DVR portion of the service.
The DVR thing was covered in the Second Circuit's Cartoon Network/Cablevision decision. It's what gave Aereo the idea to try the many-antennas approach. The biggest difference is that Cablevision has broadcast licenses.
I'm constantly amazed by the way the supreme court carves a razor sharp line through the issues. They always seem to examine these complex issues with the clarity they deserve. That's their job, but these are some fantastic and intelligent individuals, and are the only people in government, especially the justice system, that I have complete confidence in.
I truly wish I could have more confidence in other parts of government, especially lower court judges, and the police.
You're so right in theory, except that they're almost always split along idealogical lines -- individual justices strongly adhere to a single political ideology, AND justices with similar ideologies almost always stick together.
That implies, sadly, that instead of clear first-principles rulings they're really just interpreting the law to suit their beliefs.
The dissenting opinion is based on a theory that Aero did not make a choice in what they were rebroadcasting. I disagree as they carefully selected the geographic region for their antennas based on their belief in the market demand for (copyrighted) shows in that region. They also carefully adjusted their equipment to be tied to the specific frequencies of broadcasters. They knew and promoted precisely what content viewers would watch.
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[ 5.2 ms ] story [ 308 ms ] threadEither way this is bad for the consumer, bad for technology, and bad for innovation.
I'm honestly curious what is wrong with renting an antenna from a company and streaming the signal, regardless of location.
I don't think you'd have any trouble setting up DJB's Internet-Accessible Antenna Rental if that's what you actually offered. Stick some SDR equipment on the antenna and give me access to the raw bitstream. If I want to watch TV with the service, then I can tell your equipment to tune to the appropriate frequency, and then decode the bitstream locally. But if you set up DJB's TV Streaming without paying any license fees, and you just implement that by receiving signals from an antenna, it's a different beast even if it looks the same technologically.
Your intent to figure out exactly where the line is drawn is a failure that geeks have when going about the law. The law isn't written for a robot to unfailingly interpret. You won't get a good answer for the same reason the tribes making headphones out of coconuts won't get a good answer for how exactly they need to wear them for the cargo planes to come back.
I think the court has found that the "distribution for pay", i.e. "Cable TV" aspects of aereo's service outweighs the "antenna rental" aspects, and that makes it charging for a public performance.
If you rent an antenna on top of the Empire State Building, digitize the signal, and set up your own means to stream it over the internet to your house in Peoria, that is probably a private performance. If you effectively sell someone access to the stream (like a Cable TV company), that is a public performance.
This is also what ESB would be doing by letting people rent antennas and streaming servers.
Aereo is selling streaming TV service that just happens to use antennas in the backend.
You might say, it's all the same in the end from a technical point of view. And you're right, but the law doesn't care about the technical point of view. From the legal point of view, Aereo is selling TV streaming, and must comply with laws for TV streaming.
Now, if the equipement were sold instead of rented, and obstensibly Aereo was only providing electricity to the antenna/DVR setup, then things might have been different (at least it was implied in the oral arguments). But obstensibly the service being provided by Aereo was one of broadcasting, not of hardware hosting.
However, I don't think the two decisions are inconsistent. As I understand it, Cablevision was already paying license fees for rebroadcasting, and the case was just about exactly what they could or could not do with that license. Aereo's case is about whether they need to pay license fees at all.
I am eager to hear some expert commentary on the ruling on what the side effects will be.
IANAL, but felt like the DVR functionality really clouded the case and possibly skewed it away from Aereo. Harder to claim you are merely an antenna when you are recording, too.
Congress at the time did not like how the courts were ruling in favor of the then fledgling CATV services. Courts ruled that capturing and sending the shows to cable viewers was not a violation as were not acting as "performers". Congress changed that they were, effectively stopping cable from providing local and regional channels. Well Congress showed who was truly doing this by adding in all sorts of new compulsory fees for carrying local channels. So CATV can and in some cases has to carry local content and pay for it.
TL;DR
Congress changes to Copyright in 1976 at the behest of broadcasters versus CableTV is the basis for the ruling. The original broadcaster owns all rights unless otherwise assigned.
The opinion compares Aereo's use of tiny antennas to cable companies' use of one big one. They argue that since Congress passed a law back in the '70s to define the cable companies' practices as rebroadcast, that law should be read as also defining what Aereo does as rebroadcast.
When I look at their offerings, I can immediately see that they're selling a streaming TV service and it just happens to be implemented by receiving radio-frequency broadcasts. Supreme Court justices aren't idiots, and they can probably see that too.
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It isn't over since the case now goes back to the lower court, but Aereo can no longer argue they are the same as a person putting an antenna on their roof.
2. Roberts has a deep and wide judicially conservative record. He cannot be called "liberal" in the context of American politics; it's not even up for debate. The man and his judicial practice is as conservative as they come.
3. I really don't see why it matters. The justices' political leanings have nothing to do with whether or not their decisions are "correct" or not (although it may provide insight into why they decide one way or another).
[0]www.heritage.org
In a nutshell, the dissent would have also ruled against Aerio, just for a different reason than the majority. This sentence from Scalia's dissent should put things in perspective:
"I share the Court's evident feeling that what Aereo is doing (or enabling to be done) to the Networks' copyrighted programming ought not to be allowed."
Bear in mind that the function of the Supreme Court isn't to propose new laws (legislate); it's to rule on existing laws. By its own mandate, the Supreme Court does not serve an innovative function in government. It serves an examination and arbitration function. If we want to change anything here, we'll have to start in the other branches of government, or else bring a case that sufficiently challenges the Copyright Act.
You are confusing enactments (things like the Constitution and statute law, like the Copyright Act) with precedent (prior rulings of courts applying the same law). These are fundamentally different things, thought the court looks to both
Nevertheless, I think my point still stands. Court needs to find, sort, and prioritize reference points essentially.
I'm not making some big statement here, but it just goes to show that guys like Lawrence Lessig and the EFF keep losing because they have so few allies in government and have the most powerful enemies, the various deep-pocketing IP abusers like tech firms or Disney.
What now? Back to our DRM-laden lives with no silver lining I guess. Shame that the profit on mass entertainment trumps all rights. I wonder if my Slingbox is illegal now. Probably not, supposedly this decision is narrowly written, which is a welcome change from the big sweeping conservative-led majority decisions of late.
Really.
Patents, Copyright and Trademarks are all American inventions that have spread everywhere in the world. Many Americans think it goes too far, but in the fraternity of lawyers and judges, IP rules.
I believe that's the key insight. "Intellectual property" is good (in the sense of generating lots of work) for the legal profession. Judges tend to rule towards things that benefit the legal profession(s), and against things that don't benefit those profession(s).
However, you're wrong in point of fact. Copyright is an English law thing, a statute law, not a common law. Look up "Statute of Queen Anne". It's from 1710. Patents seem to be a British or Venetian thing. The USA almost didn't have a patent or copyright system, Thomas Jefferson was quite against them. For a long time, the USA allowed immigration on the basis of possessing some skill or patented idea - the USA was an "IP Outlaw". Not too surprisingly, this coincides with the USA's period of industrialization.
"Intellectual Property", the idea that one can own ideas, is just a bad idea, from an economic standpoint.
The UK made nothing to spread it, the US made sure it's more universaly accepted than the Human Rights convention.
Have you heard of the British Empire? The UK did quite a lot to spread their legal traditions.
The Berne Convention was developed at the instigation of Victor Hugo of the Association Littéraire et Artistique Internationale. Thus it was influenced by the French "right of the author" (droit d'auteur) (...) Before the Berne Convention, national copyright laws usually only applied for works created within each country. So for example a work published in United Kingdom by a British national would be covered by copyright there, but could be copied and sold by anyone in France. (...) The Berne Convention followed in the footsteps of the Paris Convention for the Protection of Industrial Property of 1883, which in the same way had created a framework for international integration of the other types of intellectual property: patents, trademarks and industrial designs.
http://en.wikipedia.org/wiki/Berne_Convention
Copyright law was also largely invented by Britain dating back to when the printing press was invented in the 1600s.
Trademark law is even older dating as far back as the Roman Empire. The first modern Trademark system was actually set up by France.
Your assertion about this stuff being American inventions is wrong.
And that's a good thing. This isn't a sports game where I should root for "my team." The judges shouldn't start from the end position they want and work towards that.
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/SB_...
I went looking through those 5-4 cases to see if were along the left/right line. Only 4 of the 8 had Alito, Roberts, Scalia and Thomas on the same side.
(The second had Thomas writing the opinion and Scalia writing the dissent. That's pretty rare.)
EDIT duh, that's what the color-coding was for. Oh well.
Decisions on issues that have high political salience tend to be the ones that make news; there is currently something of a correlation with political salience and 5-4 split decisions on the courts, since Justices positions are most ideologically (rather than legally) consistent on points that were politically salient at the time of their appointment, and the issues with the strongest political salience also are often relatively consistently salient over an extended period of time, and since the court splits at or close to 5-4 on a lot of enduringly-salient issue areas.
But plenty of 9-0 issues on issues that have current salience make news, and 5-4 decisions on which the justices are split but there isn't a great deal of political salience often aren't treated as any more newsworthy than any other decision.
In the US, broadcast channels are free over the air. However, there is a law that says if cable companies want to retransmit the broadcasts, the networks can charge the cable companies.
Is Aereo "retransmitting" the broadcast, or just renting personal antennas? That is what the Supreme Court was deciding.
It's not the decision I'd hoped for, nor the one I'd make, but it's nonsense to claim that it's "wrong". All we can do about it now is to get the law changed.
The Supreme Court decides interpretations of law, but the law itself (as written or as interpreted) is quite capable of being wrong. Law does not determine morality.
We just pretend that they, like the Catholics pretend for their pope, are infallible. At some point, you have to let the matter be settled in a final and lasting way, otherwise nothing can get done. It is sometimes better for a matter to be settled in an unsatisfying way than it is to have any uncertainty remaining.
A ruling from the ultimate arbiter is not an ethical mandate. While one can hope that their decision is compatible with and motivated by moral values and ethical principles, it could also be the result of political expedience or a bit of bad pork in yesterday's supper.
It isn't right or wrong. It is simply what has been decided by our most prestigious professional arbiters.
If you don't like what they decided, you can accept it and move on, or start petitioning a legislator in an effort to make their decision obsolete.
...Or, there is something else you could do. It rhymes with "abhorrent". As long as we're not concerning ourselves with "right" or "wrong" here, we could simply accept the precept that if the courts fail to deliver acceptable results to the litigants, they might seek them out by other means. It really depends on how mad Aereo is about the fact that a private business interest was able to use government power to destroy a potentially disruptive competitor.
I would guess that the vast majority of Aereo's business expenses were a direct result of attempting to comply with the law, and its apparent loopholes. The service could be replicated at lower cost by one antenna per broadcast station, local resources to convert the signal into compressed video files, and redundant servers in multiple safer jurisdictions. The successor could simply take subscriber fees to ensure that a particular station is recorded during a particular interval, and the resulting video is seeded for a minimum period of time. Now that they know that their entire business model is ruled illegal, there is no particular reason to comply with any part of the law... other than their respect for the law.
Aereo may choose not to do this, but they have proven that there is a market for it, and nothing excites the black market more than a proven demand for an illegal good or service. What's more, the black market equipment will be virtually indistinguishable from legal gear, so long as the operators take even the most rudimentary steps to cover their tracks.
The people who used Aereo aren't just going to go back to cable. They are simply going to move from a provider that could be sued out of existence to one that is effectively invisible, or withhold their money and wait for something else worth spending it on. I understand that the cable companies had little choice but to attack Aereo, but they have to understand that they created the market conditions for Aereo to appear. As long as they exist, they will be playing whack-a-mole with every new service that tries to provide television services better than cable.
That's expensive and inefficient. The only reason they did it was to exploit a potential loophole in the current law - and now the Supreme Court has effectively closed that loophole.
The intention of the changes to the Copyright Act (which Shivetya has detailed better than I can[1]) was to stop basically what Aereo is doing, albeit back in the 1970s with cable companies. The legalese reflected the technology of the time. Aereo found a technical loophole that allowed them to continue to do it, but all the while they were violating the spirit of the law.
Which is, of course, legal. Until it isn't.
[1] https://news.ycombinator.com/item?id=7944081
Antennas are legal. Manipulating airwaves to be played on a TV is legal. Long antenna cables are legal. Putting an antenna on my neighbor's roof is legal. Paying my neighbor rent for such a thing is legal. Storing broadcast content is legal. Paying for devices to do such a thing is legal.
Aero by many is seen as a tool to make use of those transmission on public air waves therefore in the sprit of the law.
But yes, horizontally scaling systems comes at a cost, sometimes they are more inefficient, sometimes they cost more, but in the long run if it helps you meet the goals of the business it shouldn't be illegal.
They said themselves that the reason each user has an antenna is because it was what allowed them to legally operate. Their hardware setup was entirely based around a loophole in existing law. Ironically, it's awful horizontal scaling, too - if a single antenna breaks there is no backup, the user assigned to it loses their TV signal.
It's not the array of antennas that boggled me the most, it was the racks and racks of servers encoding the exact same show hundreds or thousands of times in parallel.
The spirit of the law as passed was to stop cable companies capturing and rebroadcasting over-the-air TV signals without compensation. So it shouldn't be too surprising that the Supreme Court made the judgement they did.
It's quite simple: when this law was created, was Aereo's use case considered? If the answer is 'no', then you can expect the law to be refined to cover it at a later date. Odd legal loopholes don't get to stand just because they've been around for a while.
Also, how about applying the spirit of the Statute of Queen Anne. Wouldn't like that one, I'm thinking.
"Spirit of the Law" - humbug.
We don't, no. The Supreme Court does, however.
On if such a performance was private or public: the decision said that it was a moot point as the "commercial objective" of Aereo was the same as if it were public. The law as it stands did not intend to separate private and public performances.
If I invite 100 people to my house to see a movie, it's not a public performance (supposedly) because they are coming as members of my social circle. If I instead showed at a movie theatre and charged for it, and the same 100 people showed up, then it would be a public performance because those 100 people came as members of the public.
Here Aereo broadcast to customers as members of the public. Because Aereo owned the equipment, they were the ones doing the broadcasting (in the oral arguments one of the judges commented on how if instead they sold the equipment and just provided hosting, the position would be much more defensible).
But, like what many others have said, the intent of the law is really what matters, and the definitions of public performance are much more about intent than about technical implementations.
No.
What makes a cable company "public performance" is that the company is selling services to the general public in an arms-length transaction. The shared nature of the transmission medium is irrelevant.
They could send streams directly to individual subscribers using IPTV, as AT&T does with U-verse, and it would still be a public performance.
That is why Aereo needed the individual antennas to try to take advantage of a perceived loophole. Aereo with one big antenna would not have made it to the Supreme Court, because it would have been so obviously in the wrong.
The Supreme Court is unfortunately trapped. As the opinion notes, the Court once took a position very like Aereo's, way back in 1968, on the subject of shared "community" antennas (Fortnightly v. United Artists).
The Court's position today is that Congress more or less immediately amended the Copyright Act in response to that decision, and now the law as written no longer supports the Court's former position (and thus no longer supports Aereo's position).
The court opinion talks in terms of user interaction with menus on the site to select shows. We're kidding ourselves if this works anything like "hardware rental". If it were, it would feel more like AWS.
Aereo wanted to define the activity by drawing a box around the tiny antenna and the user.
The Supremes draw the box around Aereo and their customer base.
Edit: having read the decision, it seems there were companies that provided antenna services back in the 60's, and congress amended the copyright act to forbid them. The ability for Aereo subscribers to choose which material is transmitted is key to Aereo's argument.
WTF
I can black box Aereo and it looks like a whole lot of manual work by me to set up an antenna stream and time shift recordings etc.
Redesign their system to have discrete units. Aereo users would then buy the boxes (similar to that Hauppauge one linked elsewhere in this discussion) and pay a monthly service fee for power and bandwidth. If they are done with Aereo, they can have the box shipped to them for a small fee, or sell it back to Aereo.
The user will have complete and direct control of the TV box. Then there should be no problem.
Hardware costs will be higher though, and maybe the service ends up costing more overall. It would still be worth it for some people, like my friend who (while he likes sports in general) really just wants to see all of his favorite sports team's games from another city. I know of other people with similar use cases.
The dissent (Scalia, Alido, and Thomas) believe that Aereo did not "perform" at all. They believe that when an Aereo subscriber logs in and clicks the play button, that the subscriber, not Aereo, is doing that performing.
EDIT: Please note that the dissent would not have necessarily ruled that Aereo's service was legal. The dissent merely believes that Aereo's service complies with this one specific part of the Copyright Act. From the dissent: "[Our] conclusion does not necessarily mean that Aereo's service complies with the Copyright Act. Quite the contrary. The Networks' complaint alleges that Aereo is directly and secondarily liable for infringing their public performance rights and also their reproduction rights."
So this decision is designed to be as tight as possible. The Court is trying to limit the effects of its decision by constraining it to this one claim by the networks. From the language of the dissent, I have a hunch that even if this one aspect of the case had been decided in Aereo's favor, that some other aspect would have resulted in its service being declared illegal.
Scalia: "I share the Court's evident feeling that what Aereo is doing (or enabling to be done) to the Networks' copyrighted programming ought not to be allowed."
More from Scalia's dissent: "The Court vows that its ruling will not affect cloud-storage providers and cable-television systems, but it cannot deliver on that promise given the imprecision of its result-driven rule."
In what other sense could they have been prepared? They fully expected to end up in the courts, likely through the supreme court, and planned appropriately. They lost the case, but it doesn't seem to be for lack of preparation.
For the record, I work at a company with a lot of former Navic Networks employees (the company Chet Kanjoia founded before Aereo) so there's plenty of talk about Aereo and I'm pretty familiar with their model.
At least this time it isn't such a direct attack on the "common people"
To support that would set bad precedent, I think--both legally and technologically. Even if you hate copyright, I'd argue that this ruling is probably better in the long run because it clarifies the situation and the fight.
From that perspective I think the decision is essentially correct, although I'm sure it will be unpopular here.
However, I did read the syllabus, and there is some language in there referencing viewer participation in a public performance, that seems worrisome. But I'm not a lawyer, so I will be interested to see informed discussion of whether the specific legislation and precedents were applied correctly, and what implications were created by this decision.
The only problem is that Aereo didn't get enough money fast enough to "create an ecosystem" or whatever the phrase is when you mean "monied interest not afraid to lobby for their cause".
In other words, the SC just defined Aereo as a cable company, when they wanted to be a cloud services company.
Tech people like to treat laws as rigid rules that would be written in a formally specified language if only legislators were capable of such a thing. But they're not, and by design.
It doesn't make sense for a law to be written such that receiving on one antenna and sending the result to your users is illegal, but receiving one an antenna farm all located in the same spot and sending the result to your users is legal.
Do we really want to live in a country where the obvious solution is illegal but an insane workaround is legal? I don't want a precedent set where it becomes standard for laws to be bypassed with expensive and technically pointless workarounds. If we want to allow companies to receive TV broadcasts and stream them over the internet, we should do so. If we don't, we shouldn't. A situation where they're only allowed to do it if they have 10,000 separate and unnecessary antennas is absurd.
Personally, I think it's ridiculous that a TV station can broadcast their signal free of charge to anyone capable of receiving it, but if a company wants to receive it and then pass it along to somebody, they have to pay a fee. But the problem is with the ridiculous law, not with a completely reasonable interpretation of it.
Given that the TV broadcasters are paying for the right to broadcast (often gigantic amounts of money), I don't see a problem with preventing an Aereo from free-riding on that privilege. YMMV.
If you look back before cable TV, broadcasters transmitted their signal and the only people who could watch it were those with suitable equipment within range. Broadcasters competed to get as many people as possible to watch. Each new eyeball (preferably in pairs) meant additional revenue for them with no additional cost.
Then comes cable TV. In addition to access to new channels, it also provides the benefit of being able to watch regular broadcast channels even when you couldn't receive them over the air. That means more viewers for the broadcast stations, and thus more revenue. Why, then, should broadcast stations get paid for distributing their signal to more people, which is what they want anyway?
It's clear to me that this is what the law says, and since the Supreme Court's job is to interpret the law, it also seems clear enough to me that they made the right decision here. But it doesn't seem like a very good law.
What this seems to leave open is the question of whether a company that was e.g. a generic cloud service with various features and functions, among them the ability to rent a mini-antenna and stream recorded data from it to your computer, would still be infringing. It suggests the infringement is largely due to the way Aereo positioned and marketed itself to customers - the common sense reality of the service overrode the technological loophole they attempted to exploit.
Cablevision designed a remote DVR system that made transient, user-specific copies based on the user's pressing a button on their set-top-box remote. In their defense against Cartoon Network et al., Cablevision made the "volitional conduct" defense that Scalia talks about in the dissent here- essentially, that the user who pressed the button was responsible for making the copy. Cablevision won at trial and on appeal in the Second Circuit.
The biggest difference between the Cablevision case and the Aereo case is that Cablevision has and pays for the broadcast licenses that Aereo was trying to avoid having to obtain.
The Supreme Court ruled wrong in this case.
Aereo - watch what's over the air right now.
Hulu - puts ads in the video
Aereo - shows the ads that are over the air.
Hulu - is like having everything on DVD
Aereo - is like having a 50 mile extension cord on my digital antenna.
I think the difference is striking.
Contrast this with the lesser known, but competing service offered from Syncbak.
Syncbak does the same thing as Aereo, but rather than circumventing the existing networks and content providers; those are Syncbak's paying customer base.
http://www.syncbak.com/
I'm missing something... Cause I don't see why broadcasters are against Aero at all. Is it cause cable companies pay broadcasters for content and people think Areo will cut into that?
Theoretically Aereo makes it more expensive to watch these channels(but easier and more reliable) than a one time purchase of your own antenna.
I don't know enough about this specific case to judge. But, by in large that is what copyright law has been used to do for last 20+years.
To me that's like saying Sony who charges $150 for an outdoor digital antenna, RCA who charges $80 for a signal amplifier, and the installer who charges $500 to rig it all properly should all pay the content owners because they enabled me to watch the freely available content.
I could pay Aereo a small monthly charge or I could modify my house at great expense and end up with the exact same outcome. I don't see the difference.
Hulu - pays a fee to creators for use which it recoups/profits from ads
Aereo - pays no fee to creator, still profits from ads
I must have missed something. How do they profit from ads?
Personally, I am much more interested in what Aereo's next step is going to be.
There is 1 antenna per user. There is 1 recording per user (Aereo is not recording a single instance of desperate housewives and then muxing that out to everyone). It is over the network.
Other than not owning the means of reception and means of storage, I don't see much of a difference between this and in home recording.
Try again?
Are you saying that NBC does not pay anyone for the rights to broadcast a movie?
And yet that has nothing to do with content producers being compensated.
Studios are in a competitive environment. Not only do they have to fight other current studios for monetizable customers, they have to compete with the entire corpus of existing works. Fringe has to compete with X-Files. Law and Order: New Episode has to compete with Law and Order: Rerun.
In order to make money from customers, there must be an intact distribution path between supplier and consumer. In the world of physical goods, you cannot sell a Chinese widget to Joe Merica without a cargo ship, a stacktrain, an intermodal truck, a big-box store, its parking lot, and the roads between it and Joe's house or business. All that has to be paid for. It is completely unreasonable for the overseas manufacturer to expect that he be paid by all those links in the supply chain for the privilege of carrying the goods.
The manufacturer has to pay them a portion of what he earns from Joe on the sale, because without them, he cannot get Joe's money at all. The transport network provides value to the manufacturer because it increases the potential size of his market. Likewise, the manufacturer provides value to the transport network by giving it something to move. Neither one can even try take the whole pie, or it ceases to exist.
The distributor has to pay the supplier. But the supplier also has to pay the distributor.
In the case of broadcast television, the problem of who pays whom is partially resolved by advertising. Advertisers pay the supplier for access to their customers' attention, and the supplier can therefore pay distributors in proportion to the number of customers they can provide.
This is why broadcasters pay so much for licenses. Over-the-air radio broadcasts can bring in a huge number of customers with relatively low infrastructure investment. As long as they are paid by advertisers on a per-viewer basis, there is no reason why they should be getting any additional money from anybody for rebroadcasting rights... except one.
If the rebroadcaster is not providing the same number of consumers for the advertisers as for the entertainment content, the supplier is not getting paid for them. Enter the commercial-skipping DVR. The advertising model breaks down. The advertisers have to assume that every person not watching a show live is skipping their ads, so they only pay for the live audience.
And so castles made of sand fall in the sea eventually.
If any necessary part of the supply chain is not paid for, the money dries up for everyone. And the advertisers are paid with statistics. Aereo probably could have made this go away simply by offering up timestamps and button presses, to identify the number of customers actually watching the ads.
The whole thing is contradictory. If the broadcasters broadcast for free over the air and local cable companies retransmit to local customers for free because it increases customer exposure to the broadcaster's advertising, that would be consistent. If over the air viewers had to pay to subscribe and broadcasters also charged cable companies to retransmit, that would also be consistent.
Allowing viewers to watch for free over the air but charging money if you watch via a cable wire is an illogical contradiction that the broadcasters successfully lobbied to have codified into the Copyright Act.
So it's stupid, but not self-contradictory. The law can be enforced with no contradictions.
Until you have a technology which is neither over the air transmission nor cable TV and there is no logical way to classify it as one or the other because the original distinction had no intelligible justification.
The problem I have with a "quacks like a duck" test is, in analogy, "Your honor, it sounded like a coot to me". That is, it's not a test I can apply by myself. I have to go ask The King of All Duck Sounds if it's a duck, a coot, a widgeon or maybe a grebe.
And that's fine, if we're all interested in a society where we get permission to do anything. If that's what we are going to have, I just want those permissions to extend to all, and for Lee Greenwood to be banned from singing "Proud to be an American". Otherwise, we're going to end up with a de facto aristocracy and underclass situation. Which is prima facie bad, legal or not.
We hear all the time about people taking advantage of tax loopholes, for example. Yet these very loopholes are generally designed-in, to push people into a particular behavior. For example, I could pay less tax this year if I had solar cells installed on my roof. Would you call this means of avoiding taxes a loophole?
Modern politics is, as much as anything else, about finding ways to coerce people into the behavior you want. We set up huge taxes on tobacco, for example, to try to cut down on smoking. We help pay back student loans in order to get people to take up teaching. But most of us wouldn't criticize someone for becoming a teacher, saying they're taking advantage of a loophole in student loan agreements.
I can't see a principled way to draw a line in this, other than to simply accept laws for what they are, and similarly accept those who conform to the law as "law-abiding".
I agree that drawing a line is tricky. Certainly people are law abiding unless they are not obeying the law. But that doesn't stop me asking if people are obeying the letter and spirit of the law, and forming an opinion based on the result.
Except for it didn't.
If it's illegal to do X, but legal to do each of A, B, and C, and A -> B -> C does X, it's not surprising when X is illegal.
Laws are the map, not the territory.
For the general public, sure, all citizens may advocate for different laws. In the context of a Supreme Court decision, it's much less clear. Is the court really charged with deciding what the law should have been, if only those idiot legislators hadn't mistakenly put in yet another loophole? (Aside: does anyone really think these are mistakes?) Surely the court would be on firmer ground interpreting the laws as written.
I've had this experience in both Columbus, OH and Phoenix, AZ.
I recently gave a pair of rabbit ears to my mother-in-law and we were amazed at how much better the picture quality was. She's lucky, howver, to live about a mile or two from the sticks. Most people need a better antenna.
Cable HDTV is often heavily compressed so they can fit hundreds of junky channels into a limited pipe. Particularly for sports where there is fast motion and fine detail, the difference is night and day.
Cable headends tend not to have very much compression equipment, sometimes they have stuff used for feeds local to the headend, but usually the compression happens at the originating facility. For something like CNN, this is at their studio. The signal with that original compression is encrypted, uplinked to the satellite and then received off the satellite by receivers at the headend. It comes out of that receiver as a compressed digital signal called ASI, which is MPEG2 compressed video over SDI. It is then typically fed into a demultiplexer/multiplexer that will combine or separate it into different streams and then it is fed into a QAM modulator. For ATSC the same is fed into a 8vsb modulator (or something like that). For encrypted systems it is fed into a encryption unit before being fed into the QAM modulator. The key here is that each video stream is not recompressed even when it is remultiplexed.
The issue may be that of signal strengths and associated error rates and how that is reflected in encrypted streams. Typically encryption cases degradation to be reflected poorly in the signal compared to unencrypted signals.
I'm not seeing it. The decision seems to specifically covering only the business model used by Aereo. That is, charging users for a service that retransmits television content without a license to do so.
What other business models are you talking about?
http://en.wikipedia.org/wiki/LocationFree_Player
Am I as a consumer allowed to store my DVR material on hosted storage then have that stream to me later?
Then can my cloud provider cache and de-dupe content on their environment so that they don't need to have 4 copies of the same episode in cache?
I wonder, can a new company sell set top antennas that perform better than others, because they aggregate signals and can enhance the quality of your dvr material?
There are two reasons I paid for Aereo:
1. I cannot receive a digital TV signal over the air where I live. 2. I wanted just local channels, but did not want to pay another $30-50/mo for other channels that I'm not going to watch.
The Hauppauge product solves neither of these problems.
Relocating the receiver to a metropolitan area greatly increases the number of people who can watch the content, and ads, that are being broadcast.
As much as I do not agree with Justices Roberts or Scalia, I agree with their dissent in this case. This decision makes no sense from a legal (or technological) perspective.
What next? Illegal for a user to colocate their own antenna equipment?
Sometimes, the law is wrong. This is one of those cases. Aereo attempted to comply with the law, and was told they failed. Fine. Keep fine tuning your business model until you're just within the confines of legality. That is how the law works, no?
If it's really just me renting an antenna it seems like that is still legal.
I truly wish I could have more confidence in other parts of government, especially lower court judges, and the police.
That implies, sadly, that instead of clear first-principles rulings they're really just interpreting the law to suit their beliefs.
The split has been studied endlessly and it's real; they rule politically rather than rationally. Just one example of coverage: http://www.theatlantic.com/politics/archive/2012/06/the-incr...
Except not. Stereotypical 5-4 decisions are down, unanimous decisions are up. Overall the justices are agreeing with each other more than ever. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014...