Aereo

HMTKSteve

The Aereo case went before SCOTUS yesterday. Thoughts?

lackofcheese

Why should SCOTUS care about Microsoft's choices in user interfaces?

HMTKSteve

From the transcripts I have read...

Aereo:
1) why don't you pay a license to broadcasters?
2) why do you have so many antennas?
3) why don't you use one big antenna?
4) did you design this to get around copyright law?

Answers:
1) we don't rebroadcast, not a cable company. We just rent an antenna and a DVR to a customer.
2, 3 & 4) one big antenna requires permits and the small antenna setup allows us to easily grow as more equipment is needed. Further this setup is designed to comply with not get around the law.

Broadcasters:
1) how is this different than the Cablevision remote DVR case?
2) how long can the "wire" between devices be and still be legal? Can the antenna and DVR be in the attic, neighbors house, across town?

Answers:
1 & 2) we disagree with the cable vision case and all questions related to it. Aereo can pay a license and be OK.

In the background were questions about the impact of this case on cloud computing as well as possible future techs that may follow.

Daikun

I really hope Aereo wins the case. Think of all the money consumers can save.

$8 or $12 a month? Fuck, I'd get it. Also, we can store TV shows on the cloud without having to buy an expensive Hauppauge.

Daikun

Shit.

Apreche

What's crazy is the three worst possible judges are the ones who voted correctly.

Dr. Timo

The TL;DR of the ruling:

Daikun

Aereo's response.

HMTKSteve

Damn. So even if you engineer your product to be compliant with the law you still can't offer your service if it "looks" like something else?

Dragonmaster Lou

Daikun said:

Aereo's response.

Aereo's response seems a little disingenuous (though I agree with them, in principle, that they should not have been shut down like this). They're talking about how free-to-air broadcast television should not be available only to those who can afford to pay for a cable or satellite bundle. Okay, that's fine, only instead that you yourself make people pay for free-to-air broadcast television. You may as well say "free-to-air broadcast television should not be available only to those who can afford to pay for a cable or satellite bundle, but it should only include those who can afford to pay for Aereo as well."

People can still get free-to-air broadcast television simply by using their own antenna on their own TV set/building/etc. Oh, and get this, it's completely free except for the cost of the physical equipment.

Granted, some of this would be moot if only the broadcast television folks would get their heads out of their asses and stream their content over the internet themselves.

HMTKSteve

Even worse they declared what Aereo is doing to be a public not private performance. Think on that

Dr. Timo

Well geeks were all up in arms when the TV industry tried to nitpick and use the "how it works" argument to get software DVD players banned (technically unlicensed "copying" happens inside the processor/memory), and the courts agreed that "how it looks" is just playback of physical media, indistinguishable from a hardware DVD player.

So now when there is a company that tries to nitpick with a technical "how it works" argument (there is no rebroadcasting, technically it's just a long extension cord) and the courts present a "how it looks" judgement, all the geeks have all the rage again.

So while I agree that Aereo should be allowed to function, and would very much like a service like it, I can see the logic and consistency behind the "if it looks like a duck..." argument.

HMTKSteve

Are remote DVRs still legal? Can Aereo disable live viewing and be OK?

HMTKSteve

If you purchased rather than rented the equipment and paid a monthly colocation fee would it become legal?

lackofcheese

Under the current ruling, a service similar to Aereo might still reasonably exist if they outright claimed to be a "cable system". They clearly meet the definition of "cable system" under 111(f):

(3) Cable System.—A “cable system” is a facility, located in any State, territory, trust territory, or possession of the United States, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection (d)(1), two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered as one system.

If they fall under that definition, they have the option of the statutory license available to cable systems, which is far, far more viable than individual licensing agreements with each and every provider.

On the other hand, if Aereo shouldn't have to pay the licensing fees, why should cable companies have to pay them?

Apreche said:

lackofcheese said:

I think the Supreme Court got this one right - their interpretation of the law is correct.

The issue is that the laws themselves are bullshit, as indeed is most of intellectual property law worldwide. The laws need to be changed, but it isn't the Supreme Court's job to do that.

There was already a ruling that says it was OK for cable companies to have DVRs in "the cloud" and rent remote usage of those DVRs to customers. Aereo was doing exactly the same thing, only it was also renting the customers the antennas. The antennas only picked up broadcasts that were already available legally and free over the airwaves. There was one antenna per customer. If what you say is true, then it is directly contradictory with the previous ruling.

If so, then this case sets a precedent that should, in time, be used to overrule the Cablevision ruling.

However, in the meantime, SCOTUS has specifically chosen to avoid that question:

We cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us. We agree with the Solicitor General that “[q]uestions involving cloud computing, [remote storage] DVRs, and other novel issues not before the Court, as to which ‘Congress has not plainly marked [the] course,’ should await a case in which they are squarely presented.” Brief for United States as Amicus Curiae 34 (quoting Sony, supra, at 431 (alteration in original)).

lackofcheese

Also, it turns out there's a pretty obvious and significant difference in the Cablevision case. From the Solicitor General's office brief:

In Cablevision, the cable company already possessed the necessary licenses to transmit copyrighted television programs to its subscribers. The RS-DVR system simply allowed subscribers to engage in 'time shifting' by recording, for later viewing, programs they received through their authorized cable subscriptions.

HMTKSteve

That was the question, who is doing the retransmitting. Aereo stated that the end user is doing the retransmitting and all Aereo does is rent the equipment. Under their description of their service they are not a cable TV service, they are just an equipment rental service.

A cable TV company not only does the retransmission but it also resells the content (packages), Aereo did not do this.

Aereo further limited its service so that only people located within the legal broadcast area could rent equipment residing in that broadcast area. So anyone using the service was already legally entitled to those free broadcasts.

What I find interesting is that when CATV first started SCOTUS looked at the law and declared it legal. The law was later changed to make it illegal without paying a fee. Aereo looked at the law, engineered a legal no-fee system and SCOTUS rather than following their CATV precedent declared the service illegal rather than legal until Congress changes the law.

If I have good OTA reception and offer to a host a friends slingbox am I now a cable TV company?

Dragonmaster Lou

I believe one of the analyses of the case brought up the original CATV systems (the ancestors of of modern cable TV). Back in the day, CATV systems weren't used to get people HBO and ESPN, they were a way to get over the air broadcasts when you have lousy reception. For example: you and a bunch of your neighbors live in a valley in the boonies. As a result, your wimpy TV rabbit ear antennas, or even your fancier individual roof-mounted antennas, get lousy reception of broadcast TV. The solution: build a single giant-ass antenna that gets amazing reception, even in your remote valley, and run cables to each home to take advantage of that reception. Because this antenna is shared, it counts as a public exhibition according to the court's interpretation of the relevant laws and therefore the antenna operator would have to pay the appropriate rebroadcast fees to the networks. The court claimed that Aereo in effect worked the same way -- the individual antennas in a single location were in effect the same as the big huge single CATV antenna, and the internet connections to the customers were the same as the physical cables leaving the big huge single CATV antenna.

HMTKSteve

Those CATV systems were originaly ruled legal by the courts until Congress changed everything in 1976.

Aereo specifically engineered their system to use the antenna exclusively per user to avoid the CATV link. This came up in the court hearing when their lawyer was asked why they used thousands of small antenna when one large one would have sufficed.

Essentially SCOTUS looked at Aereo and cable TV as being black boxes. Both have OTA signals coming in one end and being served to a customer at the other. They drew no distinction as to what happens inside the black box but instead decided that because they do the same thing they are the same thing. Good thing patent law doesn't work that way!

Dragonmaster Lou

HMTKSteve said:

Those CATV systems were originaly ruled legal by the courts until Congress changed everything in 1976.

Yep, and the court ruled that those same 1976 laws applied to Aereo now.

HMTKSteve said:

Aereo specifically engineered their system to use the antenna exclusively per user to avoid the CATV link. This came up in the court hearing when their lawyer was asked why they used thousands of small antenna when one large one would have sufficed.

Essentially SCOTUS looked at Aereo and cable TV as being black boxes. Both have OTA signals coming in one end and being served to a customer at the other. They drew no distinction as to what happens inside the black box but instead decided that because they do the same thing they are the same thing. Good thing patent law doesn't work that way!

Duck typing applied to the legal system! :P

In effect, the only real difference between Aereo, old-school CATV, and modern cable is the presence of all the little tiny antennas, which the courts felt were just a gimmick to try to get around the laws. Looking at it from another point of view, if the whole idea of setting up millions of teeny, tiny antennas to get around having to pay rebroadcast fees to the OTA networks was actually legally viable, don't you think that Comcast, Cox, Time Warner, etc., wouldn't have tried it themselves to get out of the rebroadcast fees they pay?

The fact that Aereo's lawyer mentioned using all those teeny, tiny antennas to get around the the laws smells of loophole abuse (and the fact is, it was an attempt at loophole abuse). The courts felt that they needed to rule to shut down that particular loophole.

Again, this isn't to say that the law is right, even though I think the courts probably interpreted the law correctly. Free OTA broadcasts should be freely available to anyone in their viewing area no matter what manner you use to view them.

HMTKSteve

I have two farm animals a cow and a goat. Both eat vegetation, poop, can be milked and taste really good when grilled.

They must be the same type of animal!!!

Dragonmaster Lou

HMTKSteve said:

I have two farm animals a cow and a goat. Both eat vegetation, poop, can be milked and taste really good when grilled.

They must be the same type of animal!!!

Depends on how broad your category of "animal" is. They are both mammals. For that matter, they are both ungulates. Heck, they're also both bovids (members of the family bovidae). It's only at the subfamily (bovinae vs. caprinae) and genus (Bos vs. Capra) level of classification that they begin to differ. They actually are very similar to each other, biologically speaking.

Comparing cable to Aereo using this metaphor isn't winning anything here because they are so similar. If you can make a case that cable is a cow and Aereo is a Komodo dragon, okay, then you may have a valid point.

HMTKSteve

"Goat" is the pet name a cannibalistic farmer uses to refer to his wife.

lackofcheese

HMTKSteve said:

Essentially SCOTUS looked at Aereo and cable TV as being black boxes. Both have OTA signals coming in one end and being served to a customer at the other. They drew no distinction as to what happens inside the black box but instead decided that because they do the same thing they are the same thing. Good thing patent law doesn't work that way!

Yes, and it's a good thing that most of the legal system does work that way. Obviously patent law is going to be an exception, because that's the entire point of patent law.

On the other hand, copyright law isn't about restricting certain technologies, so why should the specific technological means by which something is achieved matter at all?

If you think it should, then how exactly do we deal with stuff like this:

Dr. Timo said:

Well geeks were all up in arms when the TV industry tried to nitpick and use the "how it works" argument to get software DVD players banned (technically unlicensed "copying" happens inside the processor/memory), and the courts agreed that "how it looks" is just playback of physical media, indistinguishable from a hardware DVD player.

and how do you deal with the myriad other such issues that will come up if you make copyright law contingent upon the "how it works" aspect?

I think copyright law is generally bullshit already; doing it like that would make it even more bullshit.

lackofcheese

HMTKSteve said:

If I have good OTA reception and offer to a host a friends slingbox am I now a cable TV company?

Nope. If you're doing it for just one friend it's hardly going to qualify as "public", is it?

HMTKSteve

lackofcheese said:

HMTKSteve said:

If I have good OTA reception and offer to a host a friends slingbox am I now a cable TV company?

Nope. If you're doing it for just one friend it's hardly going to qualify as "public", is it?

How many friends makes me a Cable Company?

If SCOTUS had stopped at the "it's a duck" part of the opinion it wouldn't be so bad. However, they went on to say that what Aereo is doing is a public rather than a private performance. That is a huge distinction and may have a ripple effect on the cloud because it runs counter to the Cablevision case where the court ruled such streams from a remote DVR were not public performances.

lackofcheese

So perhaps what Cablevision is doing should count as a public performance.

There's a huge issue with the Cablevision case, and that issue is probably the main reason it didn't go to the Supreme Court in the first place - the case was very narrowly defined, and explicitly left out many of the most important questions.

From the Solicitor General's brief on the Cablevision case:

Respondents’ failure to preserve any fair-use defense likewise would hinder this Court’s ability to consider the various issues raised by services like the RS-DVR. This Court ruled in Sony that the manufacturer and seller of VCRs could not be held liable for copyright infringement because “time-shifting” by consumers constituted a fair use of copyrighted broadcasts. 464 U.S. at 447-456. This Court has never addressed, however, whether a commercial actor who is charged with direct infringement may defend on the ground that he performed the copying at the behest of a customer who himself would have a fair-use defense. 6 Because of respondents’ agreement not to assert a fair-use defense in this case, the question whether respondents or their customers would “make” the non-transient copies in the RS-DVR system has assumed great significance. The importance of that issue would be diminished if not eliminated, however, if commercial actors who make copies to facilitate their customers’ time-shifting were held to be entitled to their customers’ fair-use defense.
[...]
Finally, respondents’ waiver of any fair-use defense affects petitioners’ public-performance claim. When a subscriber engages in time shifting, recording the program and playing it back are two sides of the same coin. If fair-use principles would excuse a cable company from liability for unauthorized reproduction when an RS-DVR system copies and stores a program on a hard disk at a subscriber’s behest, the same principles might excuse the company from liability for unauthorized public performance when the system transmits the program to the subscriber for playback. Here too, the parties’ agreement to litigate the case without reference to fair-use principles has elevated to great importance a question that otherwise might have been insignificant.

Surely it would be a far, far more useful precedent if Cablevision was upheld based on a fair use defense rather than nitpicking about whether it's a public performance or a private one.

Daikun

They've suspended their service.

HMTKSteve

Aereo has now embraced the SCOTUS decision and are seeking to pay the statutory rates as a cable company. Broadcaster response: according to the law you are not a cable company because you use the Internet...

lackofcheese

I figured this was going to go to the courts pretty soon. If not Aereo, some other internet-based TV service was bound to try this, and rightly so.

HMTKSteve

Aereo as a cable company would be great if I can just order locals with TNT, A&E and FX.

I just find it very funny that after SCOTUS has declared them to be a cable company anyone would seek to relitigate the issue or point to the law and say "not a cable company"... The final arbitrator has already answered the question.