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(The Week)   Aereo's argument to SCOTUS: "Look, let's face it. Broadcasters are gonna get hosed one way or the other. If we don't do it, someone else will. Don't harsh our mellow, dudes"   (theweek.com) divider line 219
    More: Followup, Aereo, U.S. Supreme Court, Supreme Court  
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7797 clicks; posted to Main » on 21 Apr 2014 at 10:01 AM (34 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2014-04-21 04:01:15 PM  

kev_dog: Theaetetus: kev_dog: I have not read up on that ruling (off to do that now), but I think the major difference is that Cablevision is paying retransmission consent fees, as well as fees to copyright.gov(1).

Nope, the 2008 ruling relied on the fact that there were individual DVRs for each cable subscriber at the cable provider's farm, so they weren't retransmitting any individual recording to  multiple subscribers. Aereo's system was specifically designed to use the same legal loophole.

http://www.cablevision.com/pdf/cablevision_aereo_white_paper.pdf

From the above
[snip]


Yes, and? The thing you're quoting from is not the 2nd Circuit's 2008 ruling, nor does that section actually have anything to do with it. That relates to the Fortnightly case and the resulting 1976 Revisions. What are you trying to say?
 
2014-04-21 04:02:54 PM  
Kev, rather than reading random quotes from a third party legal memo, how about reading the 2008ruling?
 
2014-04-21 04:10:28 PM  

Theaetetus: kev_dog: Theaetetus: kev_dog: I have not read up on that ruling (off to do that now), but I think the major difference is that Cablevision is paying retransmission consent fees, as well as fees to copyright.gov(1).

Nope, the 2008 ruling relied on the fact that there were individual DVRs for each cable subscriber at the cable provider's farm, so they weren't retransmitting any individual recording to  multiple subscribers. Aereo's system was specifically designed to use the same legal loophole.

http://www.cablevision.com/pdf/cablevision_aereo_white_paper.pdf

From the above
[snip]

Yes, and? The thing you're quoting from is not the 2nd Circuit's 2008 ruling, nor does that section actually have anything to do with it. That relates to the Fortnightly case and the resulting 1976 Revisions. What are you trying to say?


Aereo is essentially acting like a CATV system (Community Access TV, or Community Antenna TV)- designed originally to get limited broadcast signals out to people having difficulty receiving quality broadcast signals.  You dismissed the fact that Cablevision is licensed and pays retransmission consent and copyright fees and said that Aereo is exploiting the same loophole.

While I agree with you to the loophole extent, the problem that I tried to point out in my original post was that Aereo has no right to record/store the programming to begin with.  That is the fundamental difference between the Cablevision case and Aereo.  What I was citing was a reference to the playing field under which cable companies must play- and Aereo is trying to get around it.

Now, if Aereo were to pay retransmission consent and copyright fees, as required by all cable companies, I don't think there would be an argument in their technology application, but might rather hurt their business case.
 
2014-04-21 04:11:26 PM  

Theaetetus: Kev, rather than reading random quotes from a third party legal memo, how about reading the 2008ruling?


Appreciate this, and am in the process of reviewing now.
 
2014-04-21 04:19:32 PM  

kev_dog: Aereo is essentially acting like a CATV system (Community Access TV, or Community Antenna TV)- designed originally to get limited broadcast signals out to people having difficulty receiving quality broadcast signals.


Yes, I know what they are. From several hours ago:

Theaetetus: Congress amended the Act in 1976 specifically to close a similar loophole in which a CATV system had a hilltop antenna and retransmitted the signal to homes in a sheltered valley who could not otherwise receive the broadcasts - the Fortnightly case in the late 60s.


You dismissed the fact that Cablevision is licensed and pays retransmission consent and copyright fees and said that Aereo is exploiting the same loophole.


Yes, because while that  is a distinction between Cablevision and Aereo, it was not why the 2nd Circuit made their decision in the 2008 case. That case relied only on the definition of "public" in the Copyright Act. That interpretation is what Aereo exploits.

Another way to look at it is that the cable retransmission fees are for a license to legally rebroadcast the copyrighted works. Aereo is saying "we don't even broadcast, brah, so we don't need a license in the first place".
 
2014-04-21 05:09:58 PM  

Theaetetus: Kev, rather than reading random quotes from a third party legal memo, how about reading the 2008ruling?


Fascinating read- I think everyone should have read that before commenting (myself included).  Thanks for setting me straight. While I am no fan of broadcasters, I suppose I fall in the Judge Chin (dissent) camp:

"Aereo is doing precisely what cable companies, satellite television companies, and authorized Internet streaming companies do-they capture over-the-air broadcasts and retransmit them to customers-except that those entities are doing it legally, pursuant to statutory or negotiated licenses, for a fee. By accepting Aereo's argument that it may do so without authorization and without paying a fee, the majority elevates form over substance. Its decision, in my view, conflicts with the text of the Copyright Act, its legislative history, and our case law."
 
2014-04-21 05:26:35 PM  
If this turns out to be legal would it be legal to do the same but for broadcast radio?  And then parse the radio by song?  Or would it have to be by show?  Or what?
 
2014-04-21 06:06:08 PM  

kev_dog: Theaetetus: Kev, rather than reading random quotes from a third party legal memo, how about reading the 2008ruling?

Fascinating read- I think everyone should have read that before commenting (myself included).  Thanks for setting me straight. While I am no fan of broadcasters, I suppose I fall in the Judge Chin (dissent) camp:

"Aereo is doing precisely what cable companies, satellite television companies, and authorized Internet streaming companies do-they capture over-the-air broadcasts and retransmit them to customers-except that those entities are doing it legally, pursuant to statutory or negotiated licenses, for a fee. By accepting Aereo's argument that it may do so without authorization and without paying a fee, the majority elevates form over substance. Its decision, in my view, conflicts with the text of the Copyright Act, its legislative history, and our case law."


I agree with the spirit of what Chin's saying, but I think he's wrong about the text.  Specifically, his interpretation of "public" here:
Giving the undefined term "the public" its ordinary meaning, see Kouichi Taniguchi v. Kan Pacific Saipan, Ltd., - U.S. -, 132 S.Ct. 1997, 2002 , 182 L.Ed.2d 903 (2012), a transmission to anyone other than oneself or an intimate relation is a communication to a "member[ ] of the public," because it is not in any sense "private."

If someone comes over to your house to watch the game with you, under Chin's interpretation, that would be a public display. Similarly, if you have the radio on in your shop and a customer comes in and listens to it while they wait for you to finish some piece of work for them, again, under his interpretation, that would be a public performance of a work.

I think that goes too far. Aereo should pay royalties, but not by reinterpreting the copyright act to define "public" as "anyone other than oneself or an intimate relation". I think theright thing is for SCOTUS to say "Aereo is legal, under the current copyright act, so get your shiat together, Congress."

One interesting aside is that Chin was the district judge who was reversed by the circuit court in the 2008 Cablevision case - he thought that the remote DVRs at Cablevision's farm were infringing.  Now he's on the circuit court, and, in some ways, is rehearing his previous case.
 
2014-04-21 06:17:35 PM  

Dinjiin: Lawnchair: The OTA signal is somewhat of an afterthought at this point. They keep it up for somewhat historical reasons, and because the networks (CBS, etc) want to be shown on 'broadcast'. In the next 10-15 years, as broadcasters are able to sell "their spectrum" to the mobile data providers and the networks adapt (possibly including the death of the affiliate middlemen), broadcast TV will die out.

One reason free OTA television is still around is because of seniors.  Many of them have limited budgets and would resent subscriber fees.  As long as they continue to be a major voting bloc, it will be difficult to end the service.


Umm, I'm 48, and cut the cable TV cord a few years ago. Got tired of paying for 250 channels of "reality shows" I never watched. Every time I was watching something, it was on CBS, ABC, NBC, FOX, PBS, etc, anyway, so  I put this up outside, get 19 channels FREE, with better programs AND picture quality...

img.fark.net
 
2014-04-21 06:19:59 PM  

albert71292: Dinjiin: Lawnchair: The OTA signal is somewhat of an afterthought at this point. They keep it up for somewhat historical reasons, and because the networks (CBS, etc) want to be shown on 'broadcast'. In the next 10-15 years, as broadcasters are able to sell "their spectrum" to the mobile data providers and the networks adapt (possibly including the death of the affiliate middlemen), broadcast TV will die out.

One reason free OTA television is still around is because of seniors.  Many of them have limited budgets and would resent subscriber fees.  As long as they continue to be a major voting bloc, it will be difficult to end the service.

Umm, I'm 48, and cut the cable TV cord a few years ago. Got tired of paying for 250 channels of "reality shows" I never watched. Every time I was watching something, it was on CBS, ABC, NBC, FOX, PBS, etc, anyway, so  I put this up outside, get 19 channels FREE, with better programs AND picture quality...

[img.fark.net image 600x450]


"Seniors" typically refers to people 65 and older...
 
2014-04-21 06:30:04 PM  

Theaetetus: ShadowKamui: Rincewind53: ShadowKamui: Rincewind53: ShadowKamui: Then you need to seriously seek help for either blackout memory loss and/or schizophrenia.  Because everything you just reposted posted directly contradicts the crap your wannabe lawyer personality posted.

Theaetetusis an actual lawyer, unlike (I suspect) you.

You know what they call a guy in med school who got a D.  Doctor

You now what they call a guy who never went to med school but still tries to give medical advice?

An idiot.

No calling out Doctor Zoidberg as being completely wrong does not make one an idiot.  Bad lawyers w. little to no understanding of basic electronics shouldn't be spouting off random crap from some law book to coverup their stupidity.

What about good lawyers with electronics and broadcast engineering backgrounds who are quoting statutes to correct an overly broad statement about the law?


Then you made a stupid strawman example and for some idiotic reason keep trying to defend it rather than let it get knocked down

Here's how it works http://gigaom.com/2013/02/06/inside-aereo-new-photos-of-the-tech-that s -changing-how-we-watch-tv/

The antennas are separate per user but have to be dynamic as you may need multiple of them to pickup the signal and must also be extremely close to the transmission towers.  A user needs about a 6in antenna at the max (close proximity makes the math fuzzy).  While recording a show an Aereo user has complete ownership of their antenna(s), the tuner and the dvr through the rental agreement.

The whole actual argument is on whether the streaming counts as rebroadcasting or not.  Anything else is simply go back to trying to put monkeys on trial, science says you're wrong
 
2014-04-21 06:46:32 PM  

ShadowKamui: The antennas are separate per user but have to be dynamic as you may need multiple of them to pickup the signal and must also be extremely close to the transmission towers.


That is not how Aereo works. It's not even how antennas work, unless you're either confusing a Yagi antenna as being "multiple antennas" or you're confusing this with a directional beam-forming receiver. Aereo isn't doing either of those.

A user needs about a 6in antenna at the max (close proximity makes the math fuzzy).

This is not even wrong.

While recording a show an Aereo user has complete ownership of their antenna(s), the tuner and the dvr through the rental agreement.

Nor is this. They have exclusive usage of their antenna (singular), tuner, and DVR while connected. Ownership never changes hands. Nor does it in any rental agreement. Do you think you own your apartment or rental car?

The whole actual argument is on whether the streaming counts as rebroadcasting or not.  Anything else is simply go back to trying to put monkeys on trial...

No, the "whole actual argument" is whether thousands of individual streams can be aggregated to be considered a display to the "public".

... science says you're wrong

I think it's pretty clear you know very little about antennas  or copyright law.
 
2014-04-21 06:53:02 PM  
All this really shows is that the current state of written laws and regulations for the over-the-air broadcast TV industry are dusty and out-of date, leading to fairly ridiculous conundrums like this one.

If A) Areo is doing nothing technically illegal; and B) the broadcast TV industry will be seriously harmed by it; then C) this isn't a problem for the COURTS, it's a problem for the CONGRESS and the FCC.
 
2014-04-21 07:12:26 PM  
I find their argument similar to the one of, "I'm not selling beer, I'm just renting the glasses I serve it in."

Of course, the crux of the problem is that producers of TV content split off the streaming rights and DVD rights separately from the broadcast rights.  Aero has created a distinction without a difference as to whether they are renting antennae space or streaming in violation of copyright/retransmission rules.  I'm quite surprised Congress hasn't fixed this.
 
2014-04-21 08:10:26 PM  

Cataholic: I find their argument similar to the one of, "I'm not selling beer, I'm just renting the glasses I serve it in."

Of course, the crux of the problem is that producers of TV content split off the streaming rights and DVD rights separately from the broadcast rights.  Aero has created a distinction without a difference as to whether they are renting antennae space or streaming in violation of copyright/retransmission rules.  I'm quite surprised Congress hasn't fixed this.


I'm a little skeptical of Congress' ability to write legislation that would require Aereo to pay license fees but not also require any individual with an antenna and a DVR to do the same.
 
2014-04-21 08:21:39 PM  
AEREO HAS ALREADY WON lawsuits across the nation, in multiple jurisdictions.  They lost a single case - in Utah I believe - which was overturned on appeal.  The next stop for the suit was the Supreme Court, and Aereo did everything they could to fast-track the networks' Supreme Court petition to put this to bed once and for all.

Sorry about no citations - you know how to use Google and I'm in a hurry.

Don't forget your history - the first cable companies just put a big antenna on a hill and sold access to the local communities so that the people could better receive the same OTA signals that Aereo is somehow "stealing".

That anyone on this thread is in favor of the broadcasters is shocking to me. Cases like this don't come around all that often - if people are too short-sighted to see the long term implications of an Aereo loss... well, I weep for the future.
 
2014-04-21 08:28:32 PM  

qorkfiend: albert71292: Dinjiin: Lawnchair: The OTA signal is somewhat of an afterthought at this point. They keep it up for somewhat historical reasons, and because the networks (CBS, etc) want to be shown on 'broadcast'. In the next 10-15 years, as broadcasters are able to sell "their spectrum" to the mobile data providers and the networks adapt (possibly including the death of the affiliate middlemen), broadcast TV will die out.

One reason free OTA television is still around is because of seniors.  Many of them have limited budgets and would resent subscriber fees.  As long as they continue to be a major voting bloc, it will be difficult to end the service.

Umm, I'm 48, and cut the cable TV cord a few years ago. Got tired of paying for 250 channels of "reality shows" I never watched. Every time I was watching something, it was on CBS, ABC, NBC, FOX, PBS, etc, anyway, so  I put this up outside, get 19 channels FREE, with better programs AND picture quality...

[img.fark.net image 600x450]

"Seniors" typically refers to people 65 and older...


I think he's trying to point out that there are people under 65 who also watch free OTA television.  I'm under 65 and I'm a cord cutter, too.

But my point is that senior citizens are a special case.  They're more reliant on free OTA television than other age groups.  And because they vote in higher numbers, politicians tend to heed their input a lot more.  Last time there was talk of eliminating free OTA television, seniors collectively crapped their pants.  I remember all of the television ads that the NAB played reassuring people that free TV wasn't going anywhere.  The AARP scheduled meetings with senators.  It was a really big deal.

Again, ATSC-M/H introduced protected content.  Eventually, all televisions will support protected content.  Will we see a handful of encrypted digital subchannels, with the main network channel unencrypted?  Or will we see entire channels locked up?

/in Seattle, unencrypted channel 33.1 is ION, but encrypted subchannel 33.85 is NFL Network and 33.90 is Starz
 
2014-04-21 09:41:38 PM  

Theaetetus: I think theright thing is for SCOTUS to say "Aereo is legal, under the current copyright act, so get your shiat together, Congress."


Couldn't agree more.  And while we're at it, let's talk about tying and bundling (cable companies being forced to carry crap channels in order to access the most watched- e.g. must carry [and pay for] ESPN classic to get ESPN and Disney), forced carriage (sure there is a more salient name- but forcing channels to be carried on a tier that is subscribed to by x% of subscribers- ensuring that all channels that are part of a contract get sent to essentially all users), retransmission consent (we've already seen a number of broadcasters not negotiate in good faith) and finally provider equity (it costs no more to deliver content to the small guys, so why charge what is likely an absurdly higher price to them- just because they are small).
 
2014-04-21 09:58:45 PM  

Necronic: For the life of me I can't imagine how Aereo can win this argument.   The ramifications of a ruling in their favor would seriously cripple OTA ad revenue.  That said I hope they win.


How so? They aren't altering the signal and inserting their own ads, they are essentially just boosting the signal to reach people who otherwise couldn't get it. That means more people end up seeing the ads, not less. The OTA companies "Could" do the same if they wanted to but it would cost them too much money so they accept that they lose some viewers instead.
 
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