The battle may have been lost but the fact that Aereo became as successful as it was in the short time it existed is a step in the right direction.
Unless it's encrypted information, I find it absurd that the courts would side with the cable companies on what is essentially a beam of publicly accessible light.
It's actually illegal to sell a VCR that does not honor the do-not-copy transmitted signal. The courts and legislature generally sanction the activity, not the tool.
I'm sorry, I completely respect your opinion, but frankly any company that can "use" "free" data from the air and resell it much cheaper than, say, the $150 cable bill, is going to be successful. That doesn't make it lawful, or even good for content creators.
I know I hold a very unpopular opinion in this forum, but I think it's unwise to treat Aereo like some angel of free speech. The truth is, this is a for-profit company with investors hoping to make money. They make that money by shortcutting the existing distribution system and selling something very cheaply that they got for "free."
Is it good for consumers? In the short-term, it seems to be. People love the service as far as I can tell and it's cheap.
But in the long-term, I worry about a service that syphons money away from content producers (and distributors, to whom I'm less sympathetic) and puts it instead in their own pockets.
I simply can't wrap my brain around how content can be produced, grabbed for free, and - importantly - re-sold for profit. I do not think this is a "public demonstration" of work.
Finally, I think it's unfair, as some have, to claim that SCOTUS is a bunch of thieves in bed with Comcast on one hand, but heroic and commendable on another hand with regard to the warrant cell phone case. It may actually be — actually, now it is the case - that if you have an exception with the law, you will need to work to change it.
> any company that can "use" "free" data from the air and resell it much cheaper than, say, the $150 cable bill, is going to be successful.
OTA broadcasts are free for everyone. You do not have to pay $150 a month to receive them. Aereo did not offer HBO or AMC or other cable-only channels through their service.
To me, the only real issue at play was whether it is legal for a person in OH to receive OTA broadcasts from NY. And there may be some merit there: some of the local stations might possibly be funded in part by local taxes.
Why are you putting free in quotes? OTA television is completely free to consume.
Nobody is being undercut. Cable companies use most of that $150 to buy private content. Nobody is advocating for splicing into private wires and making copies.
We're in this weird situation where local TV companies tricked their distributor into paying them, even though they previously shouldered the costs of distribution themselves. I see that as the biggest injustice here.
>I simply can't wrap my brain around how content can be produced, grabbed for free, and - importantly - re-sold for profit.
Imagine a taxi that brings you to a free concert. There is nothing wrong with making a profit off of providing convenient access to something. That's what every ISP in the world does. They're not selling the TV shows. They're connecting you with the antenna that sends out free TV.
This comment is a sterling example of the crazy attitude of many on Hacker News.
Those "beams of light" had to be created, administered and regulated in order to even exist.
It is absurd that you think created content is simply a "beam of light" that anyone can harness how they see fit. I guess the objects in your house are just clusters of publicly accessible carbon; after all your locks are just lumps of publicly accessible alloys.
Except that the particular beams of light being discussed are intentionally meant by the broadcasters as resources for the public as part of fulfilling their deal to license the spectrum that beams of light useful for TV happen in, since the spectrum is fundamentally a public resource (hence open to anyone), and the exchange of public spectrum comes only in return for public usable content.
It's not like the claim was about just any beam of light.
Right. I think that there's a big difference (legally and morally) between the beams of light passing between my cell phone an the cell tower, versus something that's being broadcast specifically so that everyone with an antenna can hear it.
That is true to a point. But the spectrum is only a public resource under specific conditions and Aereo has not met those conditions according to the law and legal institutions we have empowered to make those decisions.
I have read some of your previous posts and they are exceptionally well written.
However, I await the idiotic HN consensus about to be posted below this comment stating -
a. Judges are <insert slur> old men
b. Old people don't understand technology
c. Silicon Valley could solve the entire world if we just let it
Just wanted to say "thank you" to the HN community for all the support over the past few years. Some of the most interesting and thoughtful analysis I've seen on Aereo has been in the comments here. Of course, some of the worst, too. But that's what makes it Hacker News.
This has obviously been a pretty difficult week for Aereo, and lots of people are speculating about what will happen to the company – but I don't think we're done just yet.
I'm sorry for your tough week. Not to pile on the negativity, it was an innovative product, and none of this is your fault, but it probably doesn't make sense to resell copyrighted content.
As for not being done, your CEO, Kanojia, said:
"If it’s a total straight-up loss, then it’s dead. We’re done,"
IMO, they're selling an alternative method of accessing the copyrighted content that's already freely available to you, if you bought your own equipment.
Please keep fighting, pivot into hardware and resell the antenna. If you did some software as well people would be able to make a distributed network similar to your centralized one. Revenue streams from the hardware and software could keep you viable.
Absolutely. There are lots of us that live in areas with little if no content easily obtainable over-the-air, and our HOAs forbid larger antennas. I am sure NYC and SF get a much better selection of OTA channels.
I would love the opportunity to lease an antenna off-site. And not just from the US, but antennas around the world. I can do my own DVR recording and storage locally.
Break it up to where individuals can install your antenna and DVR software for it. And let them lease it to another individual. Imagine me in the US and a friend in Japan want to share. I put up an antenna for him, he puts one up for me. I get to watch Japanese TV, he gets to watch US TV. We now both have a great resource for language study. And it's 100% decentralized.
> There are lots of us that live in areas with little if no content easily obtainable over-the-air, and our HOAs forbid larger antennas.
Your HOA cannot forbid a larger antenna for OTA broadcast reception. They can put some restrictions on where you place the antenna, such as requiring that it be in your back yard and not visible from the front, to the extent that those restrictions do not preclude reception or unreasonably raise the cost. (For satellite dishes, they can limit them to under 1 meter).
I know I had to go through my HOA to determine where I could place my Dish TV receiver and that it had requirements that it be under a certain size. Good to know it doesn't extend to OTA sizes, as I've been wanting to ditch the cable bill for a while now.
One would think, since SCOTUS said since Aereo walks, talks, and acts like a cableco, then Aereo is also available to license rebroadcast rights under the compulsory license clause, as cablecos are.
That said, I think Aereo is wonderful, but blew it in oral arguments before SCOTUS. I've never heard such a pathetic display as in this case. Example:
Chief Justice Roberts served up Aereo a softball with this statement, "I mean, there's no technological reason for you to have 10,000 dimesized antenna, other than to get around the copyright laws."
To which the lawyer's reply started with "Well." Right there the case was lost. Rather than answer this way, "Well, the point of the copyright laws, though, Your Honor, shouldn't turn on the number of antennas..." He should have replied:
"On the contrary your honor, we do it this way to _adhere_ to copyright law. The entire point of our service is a remote antenna and DVR service, and in order to do that and comply with copyright law, we have to have thousands of individual antennas. To do otherwise would violate the letter and the spirit of the law, and we have chosen instead to abide by it and provide a very specific service, we provide a rented, individual conduit. We are not duplicating cable systems, we are simply lengthening the wire between the consumer and their individual antenna."
But no. He started with a weasley sounding answer and blew the case. Aereo deserved to win, and could have. I hope Aereo goes the compulsory license route. Broadcasters can't both claim Aereo is a cable company and thus must buy licenses, and that Aereo isn't a cableco and isn't eligible for a compulsory license.
I disagree. The lower federal appellate courts, which hear appeals as of right, don't even hear oral arguments on cases that can be easily decided on the briefs. The Supreme Court rarely hears such cases: if a case was easy to decide on the briefs, the Circuit Court below would have clearly resolved it. Oral arguments are particularly valuable in cases like this one: where the law is clear, but the facts are ambiguous. Should Aereo be viewed like essentially a long antenna, or like essentially a cable service?
First off, I think we were all exceptionally happy with our counsel. It's easy to look at these things from the outside and say "Hey, I'm a smart guy. Here's how I would have argued it"... but the reality is that it just isn't that simple.
As for the answer... Justice Roberts asked for a _technological_ reason. He fully understood the _legal_ reason, even if he didn't necessarily agree with it.
"Justice Roberts asked for a _technological_ reason."
But counsel didn't answer (from what I'm reading, if I'm wrong please correct me obviously) with a technological answer.
If I say to you "speed isn't important to me so why should I get an SSD drive instead of a hard drive" you need to answer that question in a way that the person asking says "ok they've answered my question".
There was no technological reason. Aero exists solely to comply with the letter of copyright law, and, I believe, they do. (As did Scalia, Thomas, and Roberts).
As it turns out, complying with the letter of the Law, was not sufficient to win their day in court.
Ben Thompson, in his awesome daily update to subscribers, did a great constitutional law analysis of the case (In addition to being a Technology analyst, he also majored in Constitutional Law)
A small excerpt (I highly encourage you to sign up for his daily update at http://stratechery.com, it's frequently the highlight of my day)
You will note, of course, that the author of this decision was none other than Justice Breyer, and the author of the dissent one Justice Scalia. What Justice Breyer has effectively argued is that the sort of activity that Aereo is engaging in was clearly the sort of activity that Congress was seeking to legislate in the Copyright Act of 1976. And, quite frankly he’s right.
Scalia, on the other hand, argues that Aereo is abiding by the letter of the law: they have carefully implemented a solution that abides by the Copyright Act of 1976’s prohibition on public performances (your own private antenna!), and that is enough to make it legal. You can see the different doctrines clearly in Scalia’s admission that Aereo is exploiting a loophole.
Ok stipulated. But under the "every man for himself", um, "doctrine" the attorney should have made a more noble effort even if it ended up in failure. [1]
Kind of the related a bit to the "better to be thought a fool than to open your mouth and remove all doubt". Here give it a try the best you can. [2] In this case an answer was needed to the question. Not a white house dodge. Stipulate it didn't exist. Doesn't mean he couldn't have creatively offered something that at least attempted to pass the smell test. And I don't think that would have been disrespectful either.
[1] At the very least to burnish his reputation.
[2] Isn't that what attorney's do? Try to win the case even against all odds with a "guilty" client? Buy being creative?
I actually agree with you in the "Don't Dodge" part. He could have saved everyone time and effort by just saying, "No. The particular configuration of equipment at Aero exists solely so that they abide by the law, and, in fact, they do abide by the law, obeying all relevant statutes regarding transmission."
There was no need to start with a "Well" when it was abundantly clear that Aero is basically a very clever hack on the legal system, which, unfortunately, ran into some justices who don't care so much for the letter of the law, as they do the spirt of the law.
Actually, if you read Scalia's dissent, you'll see it's much narrower than that. The only question before the Supreme Court was whether a preliminary injunction should be granted because Aereo was directly infringing the copyright holders' rights. He argues (and I agree) that Aereo couldn't have been directly infringing because playback of a recorded program was under the control of the user, and therefore Aereo does not commit a volitional act in playing it back. They could still be committing indirect infringement, and indeed Scalia explicitly admits that they probably are. That question is before the lower court, but the Supreme Court was not asked to review it.
I agree that they could have done better on this point (and I've upvoted you).
What I don't agree with though is that your answer hit the hot button. At least in the way the justice was "lob-lawing" the ball. The softball was "no technological reason .... other than to get around the copyright laws". Word "tech" is important. That's what you have to hit first.
Consequently, Aereos's "loblaw" [1] should have said something that started out with "the technological reason is your honor that..." and then found some angle that dovetailed with the thought behind the scotus brain asking the question. Perhaps ending with the other rehetoric but not distracting from the intended answer.
That would be the right direction. From my understanding, there are devices like that now but the price points are higher up front and technical to set up. A plug and play approach with a monthly lease could work (assuming you can't actually make one for $30.) The bigger issue is, can this model scale and survive 5 years out? If it can not, it may be better to pull the plug.
This is a bigger loss to the TV stations than it is to Aereo users. How many Aereo users are going to go out and re-connect their televisions? Even if they do, the limitations can only reduce their viewing time. Friends who still have antenna televisions or were using Aereo largely did so because their wives liked to watch stupid reality TV shows. I never connected an antenna to my television. I have not had cable for three years. Broadcast TV stations could not make me a viewer if I was paid to watch. Between Netflix, Amazon, iTunes, Hulu, Youtube, and Twitch why would I choose to watch broadcast? It is only a matter of short time before the mass market sees it this way as well.
Between Netflix, Amazon, iTunes, Hulu, Youtube, and Twitch why would I choose to watch broadcast? It is only a matter of short time before the mass market sees it this way as well.
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A few main reasons the mass market won't see it your way.
1. Sports - you can't generally stream sports in your local market.
2. TV shows don't hit those services usually until a year or so after their original air date.
3. There's a lot of TV viewing that happens more on a 'browsing' basis. Food Network, DIY, Discovery, a lot of the viewing that happens on these networks are because folks are just bored and scanning the channels. Non serialized shows like cooking or The Daily Show, have a hard time transitioning to the services you mentioned.
4. Cost effectiveness. Once you add up the cost of many of the services you mentioned the cost of monthly fees and individual show rentals is going to get very close to your normal cable bill.
TV shows on Hulu come out the day after (and usually on the network's website as well) except for some like Fox, who put it under subscriber-only for a week.
They have a pretty amazing infrastructure for cloud DVR and live streaming. I think a spin in the direction you propose would lose all the work and investment they've made in that area.
I think a more likely pivot would be along the "can't beat 'em, join em'" lines of selling these services direct to operators to power their TV Everywhere style streaming initiatives.
Dish is already spinning up a direct to consumer streaming service and I'm sure others would follow.
You've got it half right. Aereo could pivot to selling "the little antennas" just as they are. Aereo could then charge the antenna owners a "storage fee". And continue on as usual. Surely their lawyers will have thought of this.
However if an individual owns the antenna the legal question, already murky, becomes much harder because how could a decision make these personally owned antennas illegal while keeping antennas in the home legal?
Forgive my ignorance of the judicial system, but why would the issue be returned to the lower courts?
My understanding is that a Supreme Court decision was about as final as something could get- Is there any paths to Aereo being able to win some other battle and potentially come back to life?
IANAL, but I believe the Supreme Court only ruled on one specific claim in the lawsuit not the lawsuit itself. There were other claims and the lawsuit is technically ongoing, but this one crucial aspect has been decided.
The Supreme Court doesn't make rulings on cases they make rulings on matters of law.
Most frequently, and in this case, the matter of law in front of the Supreme Court, (does Aereo's service infringe on copyright) is a core tenet of the case so it will mean the case will be lost for Aereo. However there's still a lot to be wrapped up in the lower court for example if there are damages to be paid etc.
A better example is the Cell Phone Search where they just ruled you can't search cell phones (again a matter of law). I believe in this case there were two defendants who had their phones searched during relatively routine arrests which led to greater crimes and charges. My understanding is that one case will lead to the defendant being released but the other case had enough evidence without the cell phone data that he can still be convicted.
I don't think this should be downvoted. When you look at, for example, the Sonny Bono act, aka the Mickey Mouse Protection Act[1], it's obvious this is a significant Hollywood approach. Or consider this 1982 quote from the MPAA's head: "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." [2]
One issue is subtle. Broadcast television appears to be free for any consumer with an antenna, but it really isn't. The tiny minority of consumers who watch antenna TV are subsidized by the overwhelming majority of consumers who pay to watch TV via DBS, cable, or IPTV. The revenue streams from retrans fees fund content development and acquisition.
Further, both broadcasters and pay TV providers are unhappy with any streaming service that interferes with advertising, either by making it simple to skip ads or by making it harder for advertisers to value airtime.
Your point is mostly orthogonal to mine, so your comment would have been better without the first sentence. But there's an interesting thing to consider on this tangent: television station owners do not necessarily own the content they broadcast, but might instead license it from production companies and distributors. The terms of those licenses include time/space restrictions --- television stations probably cannot themselves simply stream all their broadcast content over the Internet, because it isn't theirs to give away.
It doesn't (and I think it was a mistake to do this) but the content owners do have the right to say who gets to transmit their material, or in this case, retransmits it. I know it is not a popular opinion on HN but that is how I see it.
I wasn't an Aereo customer, but were they streaming in standard video streaming formats? If so, would it be viable for them to really lease the antennas to people and stream the non-decoded HDTV signal? It would require some sort of software defined radio decoding on the client side and would certainly reduce the features they could offer easily, but by doing that they basically become a simple signal repeater service - a commercial "range extender."
That kind of nitpicky detail won't matter to the entertainment lobbies that effectively own a huge chunk of our government. Aereo was already built on a bunch of clever, detail-focused legal loopholes and caveats that should have protected them, but the case got reversed at the supreme court after they won.
I think we should just reclaim the EM spectrum (IIRC, roughly 450-700 MHz) used by the broadcasters to build a better wireless network owned by the people. Perhaps a mesh network of sorts; the specifics could be worked out, but it should be considered. What a large piece of spectrum to waste on one-way communication, mostly filled with crappy adverts.
I kinda like this "scorched earth" policy: If public airwaves paradoxically cannot be used by the public because of performance/copyright laws, why not just scrap it?
I had a curious thought this morning, probably echoing some of the sentiments I've read here (and elsewhere). We're overlooking the precipice of a sort of "regulation paralysis" that's threatening the tech industry in the US. If we continue down this path, in 20 years, we're going to be substantially behind other nations. And to what end? To protect incumbent companies that have deep pockets for lobbying efforts in their financial favor?
Where was that study that suggested reading news leads to depression? I should stop while I'm ahead.
64 comments
[ 0.27 ms ] story [ 206 ms ] threadUnless it's encrypted information, I find it absurd that the courts would side with the cable companies on what is essentially a beam of publicly accessible light.
It would be interesting to see a decentralized Aereo make another go at this.
I know I hold a very unpopular opinion in this forum, but I think it's unwise to treat Aereo like some angel of free speech. The truth is, this is a for-profit company with investors hoping to make money. They make that money by shortcutting the existing distribution system and selling something very cheaply that they got for "free."
Is it good for consumers? In the short-term, it seems to be. People love the service as far as I can tell and it's cheap.
But in the long-term, I worry about a service that syphons money away from content producers (and distributors, to whom I'm less sympathetic) and puts it instead in their own pockets.
I simply can't wrap my brain around how content can be produced, grabbed for free, and - importantly - re-sold for profit. I do not think this is a "public demonstration" of work.
Finally, I think it's unfair, as some have, to claim that SCOTUS is a bunch of thieves in bed with Comcast on one hand, but heroic and commendable on another hand with regard to the warrant cell phone case. It may actually be — actually, now it is the case - that if you have an exception with the law, you will need to work to change it.
OTA broadcasts are free for everyone. You do not have to pay $150 a month to receive them. Aereo did not offer HBO or AMC or other cable-only channels through their service.
To me, the only real issue at play was whether it is legal for a person in OH to receive OTA broadcasts from NY. And there may be some merit there: some of the local stations might possibly be funded in part by local taxes.
Nobody is being undercut. Cable companies use most of that $150 to buy private content. Nobody is advocating for splicing into private wires and making copies.
We're in this weird situation where local TV companies tricked their distributor into paying them, even though they previously shouldered the costs of distribution themselves. I see that as the biggest injustice here.
>I simply can't wrap my brain around how content can be produced, grabbed for free, and - importantly - re-sold for profit.
Imagine a taxi that brings you to a free concert. There is nothing wrong with making a profit off of providing convenient access to something. That's what every ISP in the world does. They're not selling the TV shows. They're connecting you with the antenna that sends out free TV.
Those "beams of light" had to be created, administered and regulated in order to even exist.
It is absurd that you think created content is simply a "beam of light" that anyone can harness how they see fit. I guess the objects in your house are just clusters of publicly accessible carbon; after all your locks are just lumps of publicly accessible alloys.
It's not like the claim was about just any beam of light.
I have read some of your previous posts and they are exceptionally well written.
However, I await the idiotic HN consensus about to be posted below this comment stating -
a. Judges are <insert slur> old men b. Old people don't understand technology c. Silicon Valley could solve the entire world if we just let it
Just wanted to say "thank you" to the HN community for all the support over the past few years. Some of the most interesting and thoughtful analysis I've seen on Aereo has been in the comments here. Of course, some of the worst, too. But that's what makes it Hacker News.
This has obviously been a pretty difficult week for Aereo, and lots of people are speculating about what will happen to the company – but I don't think we're done just yet.
As for not being done, your CEO, Kanojia, said:
"If it’s a total straight-up loss, then it’s dead. We’re done,"
Was that a bluff?
I would love the opportunity to lease an antenna off-site. And not just from the US, but antennas around the world. I can do my own DVR recording and storage locally.
Break it up to where individuals can install your antenna and DVR software for it. And let them lease it to another individual. Imagine me in the US and a friend in Japan want to share. I put up an antenna for him, he puts one up for me. I get to watch Japanese TV, he gets to watch US TV. We now both have a great resource for language study. And it's 100% decentralized.
Your HOA cannot forbid a larger antenna for OTA broadcast reception. They can put some restrictions on where you place the antenna, such as requiring that it be in your back yard and not visible from the front, to the extent that those restrictions do not preclude reception or unreasonably raise the cost. (For satellite dishes, they can limit them to under 1 meter).
Here is a guide from the FCC explaining your antenna rights: http://www.fcc.gov/guides/over-air-reception-devices-rule
I know I had to go through my HOA to determine where I could place my Dish TV receiver and that it had requirements that it be under a certain size. Good to know it doesn't extend to OTA sizes, as I've been wanting to ditch the cable bill for a while now.
Any chance I could trouble you to post a screenshot?
That said, I think Aereo is wonderful, but blew it in oral arguments before SCOTUS. I've never heard such a pathetic display as in this case. Example:
Chief Justice Roberts served up Aereo a softball with this statement, "I mean, there's no technological reason for you to have 10,000 dimesized antenna, other than to get around the copyright laws."
To which the lawyer's reply started with "Well." Right there the case was lost. Rather than answer this way, "Well, the point of the copyright laws, though, Your Honor, shouldn't turn on the number of antennas..." He should have replied:
"On the contrary your honor, we do it this way to _adhere_ to copyright law. The entire point of our service is a remote antenna and DVR service, and in order to do that and comply with copyright law, we have to have thousands of individual antennas. To do otherwise would violate the letter and the spirit of the law, and we have chosen instead to abide by it and provide a very specific service, we provide a rented, individual conduit. We are not duplicating cable systems, we are simply lengthening the wire between the consumer and their individual antenna."
But no. He started with a weasley sounding answer and blew the case. Aereo deserved to win, and could have. I hope Aereo goes the compulsory license route. Broadcasters can't both claim Aereo is a cable company and thus must buy licenses, and that Aereo isn't a cableco and isn't eligible for a compulsory license.
As for the answer... Justice Roberts asked for a _technological_ reason. He fully understood the _legal_ reason, even if he didn't necessarily agree with it.
But counsel didn't answer (from what I'm reading, if I'm wrong please correct me obviously) with a technological answer.
If I say to you "speed isn't important to me so why should I get an SSD drive instead of a hard drive" you need to answer that question in a way that the person asking says "ok they've answered my question".
As it turns out, complying with the letter of the Law, was not sufficient to win their day in court.
Ben Thompson, in his awesome daily update to subscribers, did a great constitutional law analysis of the case (In addition to being a Technology analyst, he also majored in Constitutional Law)
A small excerpt (I highly encourage you to sign up for his daily update at http://stratechery.com, it's frequently the highlight of my day)
You will note, of course, that the author of this decision was none other than Justice Breyer, and the author of the dissent one Justice Scalia. What Justice Breyer has effectively argued is that the sort of activity that Aereo is engaging in was clearly the sort of activity that Congress was seeking to legislate in the Copyright Act of 1976. And, quite frankly he’s right.
Scalia, on the other hand, argues that Aereo is abiding by the letter of the law: they have carefully implemented a solution that abides by the Copyright Act of 1976’s prohibition on public performances (your own private antenna!), and that is enough to make it legal. You can see the different doctrines clearly in Scalia’s admission that Aereo is exploiting a loophole.
Ok stipulated. But under the "every man for himself", um, "doctrine" the attorney should have made a more noble effort even if it ended up in failure. [1]
Kind of the related a bit to the "better to be thought a fool than to open your mouth and remove all doubt". Here give it a try the best you can. [2] In this case an answer was needed to the question. Not a white house dodge. Stipulate it didn't exist. Doesn't mean he couldn't have creatively offered something that at least attempted to pass the smell test. And I don't think that would have been disrespectful either.
[1] At the very least to burnish his reputation.
[2] Isn't that what attorney's do? Try to win the case even against all odds with a "guilty" client? Buy being creative?
There was no need to start with a "Well" when it was abundantly clear that Aero is basically a very clever hack on the legal system, which, unfortunately, ran into some justices who don't care so much for the letter of the law, as they do the spirt of the law.
Actually, if you read Scalia's dissent, you'll see it's much narrower than that. The only question before the Supreme Court was whether a preliminary injunction should be granted because Aereo was directly infringing the copyright holders' rights. He argues (and I agree) that Aereo couldn't have been directly infringing because playback of a recorded program was under the control of the user, and therefore Aereo does not commit a volitional act in playing it back. They could still be committing indirect infringement, and indeed Scalia explicitly admits that they probably are. That question is before the lower court, but the Supreme Court was not asked to review it.
What I don't agree with though is that your answer hit the hot button. At least in the way the justice was "lob-lawing" the ball. The softball was "no technological reason .... other than to get around the copyright laws". Word "tech" is important. That's what you have to hit first.
Consequently, Aereos's "loblaw" [1] should have said something that started out with "the technological reason is your honor that..." and then found some angle that dovetailed with the thought behind the scotus brain asking the question. Perhaps ending with the other rehetoric but not distracting from the intended answer.
[1] For those who don't know: http://arresteddevelopment.wikia.com/wiki/Bob_Loblaw
This is a bigger loss to the TV stations than it is to Aereo users. How many Aereo users are going to go out and re-connect their televisions? Even if they do, the limitations can only reduce their viewing time. Friends who still have antenna televisions or were using Aereo largely did so because their wives liked to watch stupid reality TV shows. I never connected an antenna to my television. I have not had cable for three years. Broadcast TV stations could not make me a viewer if I was paid to watch. Between Netflix, Amazon, iTunes, Hulu, Youtube, and Twitch why would I choose to watch broadcast? It is only a matter of short time before the mass market sees it this way as well.
I remember seeing HKTV having these dongles which are fairly small and works pretty well with mobile devices. Maybe they can try that route.
A few main reasons the mass market won't see it your way.
1. Sports - you can't generally stream sports in your local market.
2. TV shows don't hit those services usually until a year or so after their original air date.
3. There's a lot of TV viewing that happens more on a 'browsing' basis. Food Network, DIY, Discovery, a lot of the viewing that happens on these networks are because folks are just bored and scanning the channels. Non serialized shows like cooking or The Daily Show, have a hard time transitioning to the services you mentioned.
4. Cost effectiveness. Once you add up the cost of many of the services you mentioned the cost of monthly fees and individual show rentals is going to get very close to your normal cable bill.
I think a more likely pivot would be along the "can't beat 'em, join em'" lines of selling these services direct to operators to power their TV Everywhere style streaming initiatives.
Dish is already spinning up a direct to consumer streaming service and I'm sure others would follow.
However if an individual owns the antenna the legal question, already murky, becomes much harder because how could a decision make these personally owned antennas illegal while keeping antennas in the home legal?
("Hellbanned for Life." yeah, I know.)
My understanding is that a Supreme Court decision was about as final as something could get- Is there any paths to Aereo being able to win some other battle and potentially come back to life?
Can you appeal a Supreme Court decision?
No, you cannot appeal a Supreme Court decision.
Most frequently, and in this case, the matter of law in front of the Supreme Court, (does Aereo's service infringe on copyright) is a core tenet of the case so it will mean the case will be lost for Aereo. However there's still a lot to be wrapped up in the lower court for example if there are damages to be paid etc.
A better example is the Cell Phone Search where they just ruled you can't search cell phones (again a matter of law). I believe in this case there were two defendants who had their phones searched during relatively routine arrests which led to greater crimes and charges. My understanding is that one case will lead to the defendant being released but the other case had enough evidence without the cell phone data that he can still be convicted.
1. Someone, somewhere, is interacting with something we might own a chunk of. 2. Therefore, IT'S OURS GIVE US ALL THE MONEY.
[1] http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
[2] http://en.wikipedia.org/wiki/Jack_Valenti#Valenti_on_new_tec...
Further, both broadcasters and pay TV providers are unhappy with any streaming service that interferes with advertising, either by making it simple to skip ads or by making it harder for advertisers to value airtime.
1. http://en.m.wikipedia.org/wiki/Nielsen_ratings
Hopefully, Aereo will find some way to continue.
I had a curious thought this morning, probably echoing some of the sentiments I've read here (and elsewhere). We're overlooking the precipice of a sort of "regulation paralysis" that's threatening the tech industry in the US. If we continue down this path, in 20 years, we're going to be substantially behind other nations. And to what end? To protect incumbent companies that have deep pockets for lobbying efforts in their financial favor?
Where was that study that suggested reading news leads to depression? I should stop while I'm ahead.