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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 52
    More: Followup, Aereo, U.S. Supreme Court, Supreme Court  
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7783 clicks; posted to Main » on 21 Apr 2014 at 10:01 AM (21 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2014-04-21 10:13:35 AM
6 votes:
Remember this is the same industry that told the Supreme Court, in the early 1980's,  with a straight face, that there should be a $3 surcharge added to every blank VCR tape sold in America and that money should be given directly to them.  A failure to do so, the industry swore, would mean that Hollywood studios and TV production companies would be driven out of business by the end of the decade

Now, of course we know that the VCR and its successors has been the greatest financial BOON to the movie and TV industry ever, but that did not stop them from doing their best to strangle the technology in the cradle.  Mostly because large corporations react to innovation about as well as SNL's famous "unfrozen caveman lawyer"
vpb [TotalFark]
2014-04-21 08:32:10 AM
5 votes:
I don't see why it's such an issue.  OTA TV makes money from advertisements and Aereo would help them reach a larger audience and make more money.  It's supposed to be a replacement for an antenna IMHO.  I don't see that it's any different from making a high gain antenna.
2014-04-21 10:48:32 AM
4 votes:

GoldSpider: Geotpf: Imagine you are a landlord.  You own a house and rent it out.  Heck, you own several houses and rent them out.  Attached to each house is a television antenna on the roof (old-school style); the tenant hooks up their TV to it.  Nobody would argue that this is illegal.

Except the landlord isn't storing and redistributing the content, let alone charging for access to it.


Imagine that the house you live in gets bad television reception.  Your neighbor, who lives on a hill, gets great reception.  Your neighbor hears you complaining about the difficulty of getting TV at your place, so he comes to you one day and says, "Hey, I've got a spare antenna mounted up at my place, and a spare DVR, too.  How about you rent them from me and we'll run a cable from the antenna down to your house?"

That's all Aereo is doing.
2014-04-21 10:23:31 AM
4 votes:

JackieRabbit: So, cannot Aereos not be considered a subscription antenna provider?


Aereo is essentially a leased antenna.

Regardless, the broadcasters will win because they have money and the Roberts' court sides with powerful interests every single time.
2014-04-21 10:55:55 AM
3 votes:

GoldSpider: Geotpf: Imagine you are a landlord.  You own a house and rent it out.  Heck, you own several houses and rent them out.  Attached to each house is a television antenna on the roof (old-school style); the tenant hooks up their TV to it.  Nobody would argue that this is illegal.

Except the landlord isn't storing and redistributing the content, let alone charging for access to it.


What if the landlord did charge, though? For eight bucks he lets you use one of his VCRs (he has a bunch in the basement) and promises to keep the antenna in good shape and routes it to your apartment.

There's no way that's illegal.

To make the analogy perfect, the landlord has ten units and ten antennae. Aereo literally has an antenna for each user.

This is like suing VCR manufacturers. Which of course Big Cable did.
2014-04-21 03:46:14 PM
2 votes:

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

The Copyright Act grants owners various exclusive rights, including the right to "reproduce the copyrighted work in copies" and to "prepare derivative works."1 One such right is the right "to perform the copyrighted work publicly."2 Although the Act has long granted that public performance right in some form, its scope has evolved over the years. 
 
Before the 1976 Copyright Act, it was unclear whether the public performance right applied to cable systems. Cable system operators would erect community antennas to capture broadcast signals and retransmit them over cable lines to subscribers in areas where  over-the-air reception was impaired by long distances or hilly terrain. In two cases - Fortnightly Corp. v. United Artists Television, Inc.3 and Teleprompter Corp. v. Columbia Broadcasting System, Inc.4 - the Supreme Court ruled that such cable systems were not "performing" the programs they retransmitted. Since an individual consumer would not be performing by placing an antenna on his own rooftop to improve reception, the Court reasoned, a cable television operator should not be deemed to publicly perform by providing essentially that same service on a larger, commercial scale. 
 
Congress responded in the 1976 Copyright Act. It recognized that, under Fortnightly and Teleprompter, "the cable television industry has not been paying copyright royalties for its retransmission of over-the-air broadcast signals."5 Congress "believe[d] that cable systems are commercial enterprises whose basic retransmission operations are based on the carriage of copyrighted program material and that copyright royalties should be paid by cable operators to the creators of such programs."6 Congress thus amended the public performance definition to clarify its applicability to cable systems while enacting a statutory 
licensing scheme for cable retransmissions.

Congress accomplished that change through several revisions. First, it enacted a definition of "perform" that included a special definition for "audiovisual works" such as television programs: 
 
To "perform" a work means to recite, render, play, dance, or act it, either 
directly or by means of any device or process or, in the case of a motion 
picture or other audiovisual work, to show its images in any sequence or to make 
the sounds accompanying it audible.8 
 
In other words, to "perform" a television program is to "show" it - a performance is a showing of the program. Congress then further defined what it meant to perform a work "publicly": 
 
To perform or display a work "publicly" means - 
 
(1) to perform or display it at a place open to the public or at any place 
where a substantial number of persons outside of a normal circle of a 
family and its social acquaintances is gathered; or 
 
(2) to transmit or otherwise communicate a performance or display of the work to a 
place specified by clause (1) or to the public, by means of any device or 
process, whether the members of the public capable of receiving the 
performance or display receive it in the same place or in separate places 
and at the same time or at different times.9 
 
The first clause covers performances in public places, while the second - the "Transmit Clause" - covers transmissions of performances either (i) to public places or (ii) "to the public." A person thus infringes the public performance right when, absent consent or exemption, he "transmit[s] . . . a performance . . . of the work . . . to the public." 
 
 Finally, Congress adopted a statutory licensing scheme for cable systems. Under Section 111, "secondary transmissions to the public by a cable system of a performance or display of a work embodied in a primary transmission made by a broadcast station" are subject to statutory licensing upon payment of any applicable fees and compliance with other requirements.10 (Since 1992, broadcasters themselves have also had the right to demand fees from cable companies under the "retransmission consent" provision of the Communications Act.11)
2014-04-21 11:26:59 AM
2 votes:
Anyone else think the article's author should have revealed his paid affiliation to network TV somewhat before the second-to-last paragraph? Possibly in an italicized note at the very top?
2014-04-21 11:11:47 AM
2 votes:

wooden_badger: I wonder what these "antenna farms" look like.  What if the channel being received is one of those low VHF ones that need a decent size antenna anyway. There's still a few of those left.


The antennas are the small things on the top. They've done a great job with miniaturization. They then stack these things like server racks.
www.crainsnewyork.com
2014-04-21 11:01:35 AM
2 votes:

meat0918: Damn.

I've always been under the impression that recording then rebroadcasting a tv show was illegal, even if I encrypted the signal and charged a membership fee.


They aren't rebroadcasting the show as each user has their own DVR

The whole argument is basically are VCR/DVR legal if they're 10 miles down the road from the TV.  If not then at what distances does a legal VCR/DVR become illegal
2014-04-21 10:44:58 AM
2 votes:
I used to live in a high-rise condo.  On the roof of the building, our HOA put up several high-quality antennas and installed all the necessary equipment to boost and distribute the signals to the ~200 condo unit owners.  It was a very good, "free" (well, we obviously paid for the equipment and maintenance through condo fees) cable system.  But, the cable providers weren't cut out - if you wanted cable, you could purchase it and their infrastructure was in our building for easy setup; in fact, we also had the choice of two satellite providers who had installed equipment on the roof which would capture/distribute the signals down to the condos.

It all worked very well together.  The condo owners had their choice of market provider(s) and packages, or we could use our socialist OTA system.

Of course, this was in Canada.  Derp.
2014-04-21 10:24:46 AM
2 votes:
I think Aereo should win.

Here's my thinking.

Imagine you are a landlord.  You own a house and rent it out.  Heck, you own several houses and rent them out.  Attached to each house is a television antenna on the roof (old-school style); the tenant hooks up their TV to it.  Nobody would argue that this is illegal.

Aereo is doing the same thing-renting out a TV antenna.  Therefore, it should be legal.

But who knows the ruling will actually go?
2014-04-21 08:50:13 AM
2 votes:

vpb: I don't see why it's such an issue.  OTA TV makes money from advertisements and Aereo would help them reach a larger audience and make more money.  It's supposed to be a replacement for an antenna IMHO.  I don't see that it's any different from making a high gain antenna.


Yeah, but there's even more money to be made if they can charge Aereo for the privilege of helping themselves make more money. It's the end game, folks. In twenty years, the haves will have everything and the have-nots will be farked forever. You need to grab what you can, now.
2014-04-21 08:21:39 PM
1 votes:
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 06:53:02 PM
1 votes:
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 06:06:08 PM
1 votes:

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 04:19:32 PM
1 votes:

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 03:28:14 PM
1 votes:

poot_rootbeer: Theaetetus: Aereo has been premising all of its arguments on "one subscriber=one antenna". If the other side starts hammering on that and saying "but you share those antennas"

Is that actually the case, though?

If I'm an Aereo subscriber, am I leasing exclusive use of Antenna NYC-0-108195 for the duration of my subscription?  Or will the system connect me to any one free antenna in the NYC-0 cluster depending on service load availability?


The latter... From the 2nd circuit opinion:
Aereo's system usually assigns these antennas dynamically. Aereo users "share" antennas in the sense that one user is using a particular antenna now, and another may use the same antenna when the first is no longer using it.

Aereo seems to have been so fastidious about obeying the letter of the law in every other aspect of their hardware systems design, I'd be surprised if they hadn't done the former just to be safe.

The Beatings Will Continue Until Morale Improves: I have to think Aereo examined their service thoroughly before they could present it to investors.


As I said, it doesn't matter from a legal perspective... It just undermines the credibility of their argument somewhat.
2014-04-21 03:24:29 PM
1 votes:

poot_rootbeer: Theaetetus: Aereo has been premising all of its arguments on "one subscriber=one antenna". If the other side starts hammering on that and saying "but you share those antennas"

Is that actually the case, though?

If I'm an Aereo subscriber, am I leasing exclusive use of Antenna NYC-0-108195 for the duration of my subscription?  Or will the system connect me to any one free antenna in the NYC-0 cluster depending on service load availability?

Aereo seems to have been so fastidious about obeying the letter of the law in every other aspect of their hardware systems design, I'd be surprised if they hadn't done the former just to be safe.


I have to think Aereo examined their service thoroughly before they could present it to investors.
2014-04-21 03:22:02 PM
1 votes:
I wonder how the Supreme Court will overturn this without overturning the 2008 ruling. There doesn't seem to be a lot of difference between remotely recording and storing an OTA signal and remotely recording and storing a cable signal since both are acquired legally.
2014-04-21 02:30:39 PM
1 votes:

Riche: Interesting thread, though it only highlights how broken the broadcast model is, and how it's probably all (or almost all) the cable companies' fault.

In a SANE world, every TV station would have a web site and/or dedicated stream service where you could watch the channel on any internet connected machine with halfway decent bandwith and a web browser.

Why not?  It's my understanding because cable companies extort local stations to carry their channels to their local market, along with an arcane tangle of transmission/retransmission agreements with the larger networks.

Really, there shouldn't be any reason I couldn't take my pc here in Oklahoma and use the browser to watch some station in south Florida if I wanted to.

Hell, all those stations are supported by ads anyway, and the ads would still be seen-- only by far more people.


Whoa there, fella.  Slow your roll. You kind of have it backward.  Cable companies pay the local stations for transmission, not the other way around.

And why would some station in south Florida care if you're watching in Oklahoma?  Let me rephrase that.  Why would a local advertiser, who is advertising on a local station in south Florida, want to pay the network more because some random person in Oklahoma, who will never shop at Bob's Boot Emporium or request legal services from Bob Loblaw, is watching their commercials?

The reason you can't watch television online is not because the cable companies don't want it.  Hell, Dish Network is backing Aereo in this case because THEY WANT TO DO THE EXACT SAME THING.  The reason you can't watch (all) television online is because the networks make more money selling their content to cable companies than they likely would to individual consumers.
2014-04-21 02:17:39 PM
1 votes:
Interesting thread, though it only highlights how broken the broadcast model is, and how it's probably all (or almost all) the cable companies' fault.

In a SANE world, every TV station would have a web site and/or dedicated stream service where you could watch the channel on any internet connected machine with halfway decent bandwith and a web browser.

Why not?  It's my understanding because cable companies extort local stations to carry their channels to their local market, along with an arcane tangle of transmission/retransmission agreements with the larger networks.

Really, there shouldn't be any reason I couldn't take my pc here in Oklahoma and use the browser to watch some station in south Florida if I wanted to.

Hell, all those stations are supported by ads anyway, and the ads would still be seen-- only by far more people.
2014-04-21 02:12:17 PM
1 votes:
aintnuttintofarkwith:
2a) Especially younger people, like myself. People my age are too Internet savvy to be fooled into paying $80/month for full television service. If I had Aereo, I would've watched a lot more broadcast television.

This right here.  Unless I start making >100k a year I will never pay for cable again.  I still get advertisements from AT&T trying to get me to get cable again and it makes me angry to read it.  I still feel ripped off for having cable for a year.
2014-04-21 02:00:57 PM
1 votes:

qorkfiend: aintnuttintofarkwith: I'm a young professional that works for a CBS affiliate. I support Aereo for several reasons:
1) Television is dying and needs a reformative kickstart
2) In general, local advertisers will reach more people
2a) Especially younger people, like myself. People my age are too Internet savvy to be fooled into paying $80/month for full television service. If I had Aereo, I would've watched a lot more broadcast television.
3) I'm in advertising, and this could provide valuable research to advertisers if its accessed online. Local business owners wet themselves over IP targeting.
4) Hell, a few years from now, you could even make ads clickable and redirect directly to the brand's website.

So, yeah. If this rules in Aereo's favor, CBS will defnitely lose some capital in the short-term, but they - and television in general - will benefit from it longterm if they can properly adapt to the changes.

Sure, but the decision-makers at CBS are looking at next quarter's numbers, not the numbers five years from now.


Yeah, the fundamental flaw of publicly held companies.
2014-04-21 01:55:31 PM
1 votes:
I'm a young professional that works for a CBS affiliate. I support Aereo for several reasons:
1) Television is dying and needs a reformative kickstart
2) In general, local advertisers will reach more people
2a) Especially younger people, like myself. People my age are too Internet savvy to be fooled into paying $80/month for full television service. If I had Aereo, I would've watched a lot more broadcast television.
3) I'm in advertising, and this could provide valuable research to advertisers if its accessed online. Local business owners wet themselves over IP targeting.
4) Hell, a few years from now, you could even make ads clickable and redirect directly to the brand's website.

So, yeah. If this rules in Aereo's favor, CBS will defnitely lose some capital in the short-term, but they - and television in general - will benefit from it longterm if they can properly adapt to the changes.
2014-04-21 01:51:34 PM
1 votes:

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.
2014-04-21 01:27:21 PM
1 votes:

JackieRabbit: However, today's digital televisions cannot even receive a broadcast without a special antenna


Digital TV can use the same VHF rabbit ears and UHF loop antenna as analog TV could.  I use an outdoor antenna from Radio Shack that has been on the books since the late '80s.


wooden_badger: I wonder what these "antenna farms" look like.  What if the channel being received is one of those low VHF ones that need a decent size antenna anyway. There's still a few of those left.


They're fairly small.  They use a fractal design, which allows for the shrink.
2014-04-21 01:17:42 PM
1 votes:

ShadowKamui: That you have absolutely no clue WTF you're talking about

Aereo timeshares physical antennas and rents out DVRs, nothing in the law you quoted has anything to do w/ either of those 2 things


Yes, clearly, I don't know that Aereo timeshares physical antennas and rents out DVRs. That's why I never said anything like:

Theaetetus: I used Aereo this past fall so that I could watch live football, without paying for full cable.
Theaetetus: Aereo doesn't  broadcast anything - they unicast everything, on a one customer=one receiver/DVR basis. It's very similar to that Cartoon Network case I quoted from above - a single unique copy is made for each subscriber and sent only to the subscriber.

Theaetetus: They do some resource sharing. Technically, it's not  really one antenna per subscriber, but rather, "we have 10,000 antennas and when you sign on to watch live, we'll pick one unused one." There's no guarantee that tomorrow you'll get the same physical antenna you have right now, so there is some question of whether you're  really renting it the antenna.

Theaetetus: If they had one giant antenna and headend, then existing court decisions would say that they were illegally publicly performing or displaying the signal. With individual signals, the argument is that they are not providing a single signal "to the public", but just to an individual.


Obviously, I have no idea how Aereo works. You sure have adequately described what I'm saying.
2014-04-21 01:03:19 PM
1 votes:

thirdgrader: Rincewind53: Theaetetus: Mind you, that was only from the 2nd Circuit, but I believe SCOTUS denied cert in that case.

Right, Aereo was essentially created as a direct result of that decision. It's a rather brilliant technological exploitation of a legal loophole, as explained very well on Scotusblog. That said, I think the Supreme Court isn't going to allow it; it's violating the spirit of the law so obviously that even if there's no  clear violation of the letter of the law, the Court is still going to strike it down.

Scalia is pretty vehement when he speaks publicly that letter of the law trumps spirit of the law every time.

His rulings also demonstrate his belief that the richer you are the better person you are and therefore deserve to win.

I'm guessing he'll rule for the wallet guys. Which is exactly why this case is important. It's yet another nail in the coffin for the middle class.


Yeah, I think Scalia is going to do his best to put an end to this Internet thingy.
2014-04-21 12:54:08 PM
1 votes:
Has Scalia said anything mind blowingly stupid in advance yet?
2014-04-21 12:52:11 PM
1 votes:

Enuratique: I was an active Aereo subscriber for a few months, so I know the service very well... Reading through these threads it's obvious a lot of people don't fully understand the scope and breadth of Aereo's offerings (in other words, people think it does a lot more than it actually does). While I liked Aereo, and I want to see them win just on the grounds of me liking to see innovative technology/business models triumphing over antiquated laws, I don't think Aereo is going to win.

The whole 1 antenna + 1 recording per user is a red herring. The fact that the OTA signal is free to begin with is a red herring. The argument that you're renting infrastructure and not paying for content is also a red herring. A clever argument from Aereo's lawyers (if that's really their tact here).

I saw this analogy in the other thread and I think it makes the most sense to me:

Pandora/Spotify/Slacker all broadcast music to me for free. They're able to do this because they've gotten license agreements from the content owners (RIAA/Sony/Universal/BMG, et al) which allows them to broadcast that music in return for meeting certain conditions (payment of royalties, restrictions on how songs can be played [ie, no on-demand, no more than 6 skips per hour, etc]). They're able to continue providing this service because they charge advertisers for the ad space created between songs.

Now let's say I come along and figure out how to record these audio streams for my own private enjoyment. Honestly this is probably a violation of the EULA, but let's assume for the sake of argument that it's legally allowed. I then turn around and run a service that lets others record and access songs from my Pandora stream. Again, for each subscriber, I create an additional virtual instance and that person's recordings are only accessible to them. I charge $8 a month for this, since it takes a lot of power/bandwidth/ram to run all those virtual instances.

I'm now profiting off of content to which I neither own the ...


You're full of shiat, and apparently, you don't know what a "red herring" is, either.

Aereo IS a hosted-DVR service.  They utilize the same legal loophole that Cablevision DVR service did to become a reality.  http://multichannel.com/news/content/cablevision-blasts-broadcasters- t ying-rs-dvr-aereo-litigation/356730   Of course, CV didn't know what a "Pandora's Box" they were opening at the time.

Do you even know how services like Pandora or Spotify work?  For one, they deliver on demand, so that's a directed unicast, but they reuse the same content for multiple subs and often attempt to negotiate rights directly working around the standard streaming rates.  Some of it is still broken, though.
http://www.nytimes.com/2014/02/14/business/media/pandora-suit-may-up en d-century-old-royalty-plan.html?_r=0

Pandora and Spotify deliver from their stored catalogs, and do so based upon users' indicated preferences and schedules.  Aereo does not.  The equivalent to Aereo would be (which I have not seen done, but could exist out there) records from a radio based in a particular physical location at the request of a human user on a particular frequency for a particular period of time.  The selection of those values is aided by a schedule provided by this theoretical Aereo equivalent provider.  THIS IS TOTALLY DIFFERENT FROM PANDORA OR SPOTIFY

/keep your mouth shut, the adults are talking.
2014-04-21 12:49:51 PM
1 votes:
Didn't the cable do this exact same thing when they started out?

I don't see how this is breaking new ground. Go with the same rules the cable companies have to follow.
2014-04-21 11:56:57 AM
1 votes:

Rincewind53: Caeldan: On a personal scale. How is what aereo does different from you having an antenna and a slingbox.
All aereo is doing is shifting off premises and charging you to lease the equipment in their space.

The fact that they are following the letter of the laws is important and should be upheld.

Shifting off premises and charging you to lease the equipment  changes things, that's why. It's different. You can't say "How is what X does different when all they do different is Y"? X and Y are two different situations with a  shared but not identical premise. Like, "How is Star Trek any different from Star Wars? All Star Trek did differently is set their TV show in the future, not in the  past."

An antenna and a slingbox only works for one person. While Aereo is  technically still only "one" antenna, the content providing infrastructure is totally different. If it looks like a duck, quacks like a duck, and acts like a duck, does it really matter if it's actually a highly-sophisticated duck-shaped robot programmed to perfectly mimic a duck in every single way?


No it does not, unless they squash the lower courts ruling.  Remote streaming from a DVR is legal as long as the recording itself was legal.

Simply because you rented a DVR rather than bought it, doesn't mean you get a whole different set of legal restrictions on what you can record.   Otherwise every god damn rent to own place, cable company, satellite company and anyone else who rents out VCR/DVR committed copy right infringement for the last 30 years
2014-04-21 11:54:21 AM
1 votes:

wxboy: Skirl Hutsenreiter: I actually don't see how that's fundamentally different.

All those hundreds of people could each have an antenna on their own roof, but they are willing to pay the neighbor to have their antenna on his property instead. Why? Because they can't get antenna reception on their own property. In essence, their choice to get what should be free OTA broadcasts is to either pay to use their antenna on their neighbor's property, or to pay to use the cable company's antenna. The cable company in turn only pays the broadcasters because they weren't interested in having an antenna per customer.

By that logic, I should be able to pay Aereo to watch the local NYC channels even though I'm in Florida.  If Aereo is legal from 10 miles away, why should 1,000 be any different?


You sort of can. Aereo allows you to rent out an antenna anywhere and watch from anywhere, even if you don't live in the area you're renting out the antenna for. If I wanted to watch local Boston programming, I could just rent out one of their Boston antennas and watch right now. However, I would have to lie to them on the registration form and tell them I lived in Boston, since their Terms of Use restrict viewing to your "Home Market", which the define by the residential address you give them. This restriction is yet another attempt to show that they're fitting this loophole, even though their technology would easily allow them to provide every local channel to anywhere.
2014-04-21 11:41:56 AM
1 votes:

Coming on a Bicycle: Rincewind53: kittyhas1000legs: Rincewind53: wooden_badger: I wonder what these "antenna farms" look like.  What if the channel being received is one of those low VHF ones that need a decent size antenna anyway. There's still a few of those left.

The antennas are the small things on the top. They've done a great job with miniaturization. They then stack these things like server racks.
[www.crainsnewyork.com image 850x637]

Thing is, can one individual antenna in that thing pick up the channels desired, or do you need them to be in the array like that to pick up the channels? I sure as hell can't get the local FOX channel from three miles away with that. I need at least a wand if not rabbit ears. Aereo's argument may hold some water if each antenna is capable of reception, but it looks to me that you need the dime-sized antennae in an array to have reliable reception.

Allegedly each antenna is picking up each channel separately.

That's an enormous waste of resources. Mandated by law. Just like the size of Japanese cars. Total ridiculousness.


As it turns out, skirting a law while staying technically within its boundaries thanks to technologies that hadn't even been conceived of when the law was originally written is probably not going to result in the most efficient model.
2014-04-21 11:37:33 AM
1 votes:

Rincewind53: Except Aereo is putting thousands of spare antennas on a circuit board. So, to make your metaphor better, what if your neighbor were to cover every inch of his rooftop with antennas, and every square inch of his yard, so that there are hundreds of the things. Then he goes around to every house in the neighborhood and says "Hey, I'm willing to rent you access to my antennas for cheaper than the cable company. You should cut the cable and go with me instead."

I think we can both agree that the large-scale operation, while operating in a superficial way like the example you gave, is fundamentally different.


I actually don't see how that's fundamentally different.

All those hundreds of people could each have an antenna on their own roof, but they are willing to pay the neighbor to have their antenna on his property instead.  Why?  Because they can't get antenna reception on their own property.  In essence, their choice to get what should be free OTA broadcasts is to either pay to use their antenna on their neighbor's property, or to pay to use the cable company's antenna.  The cable company in turn only pays the broadcasters because they weren't interested in having an antenna per customer.

As to the theater versus private viewing party analogy: that comes down to the definition of private versus public use.  Previous cases have found that cloud-based DVR services were fine for the very same reasons Aereo is using it its argument: each household chooses what to record, has their own recordings that aren't shared between households, only piped into that one home on demand.  Thus private use.  Likewise, Aereo isn't making one master recording of How I Met Your Mother that for a fee they broadcast to everyone who wants to watch it ala the theater viewing party; they are making an individual recording for each household and charge to store it offsite rather than on an in home DVR.

The only innovation here is that Aereo has both the antenna and the DVR offsite, though still in the same broadcast market.
2014-04-21 11:37:13 AM
1 votes:

Rincewind53: kittyhas1000legs: Rincewind53: wooden_badger: I wonder what these "antenna farms" look like.  What if the channel being received is one of those low VHF ones that need a decent size antenna anyway. There's still a few of those left.

The antennas are the small things on the top. They've done a great job with miniaturization. They then stack these things like server racks.
[www.crainsnewyork.com image 850x637]

Thing is, can one individual antenna in that thing pick up the channels desired, or do you need them to be in the array like that to pick up the channels? I sure as hell can't get the local FOX channel from three miles away with that. I need at least a wand if not rabbit ears. Aereo's argument may hold some water if each antenna is capable of reception, but it looks to me that you need the dime-sized antennae in an array to have reliable reception.

Allegedly each antenna is picking up each channel separately.


That's an enormous waste of resources. Mandated by law. Just like the size of Japanese cars. Total ridiculousness.
2014-04-21 11:27:26 AM
1 votes:

Rincewind53: Theaetetus: Mind you, that was only from the 2nd Circuit, but I believe SCOTUS denied cert in that case.

Right, Aereo was essentially created as a direct result of that decision. It's a rather brilliant technological exploitation of a legal loophole, as explained very well on Scotusblog. That said, I think the Supreme Court isn't going to allow it; it's violating the spirit of the law so obviously that even if there's no  clear violation of the letter of the law, the Court is still going to strike it down.


Scalia is pretty vehement when he speaks publicly that letter of the law trumps spirit of the law every time.

His rulings also demonstrate his belief that the richer you are the better person you are and therefore deserve to win.

I'm guessing he'll rule for the wallet guys. Which is exactly why this case is important. It's yet another nail in the coffin for the middle class.
2014-04-21 11:26:42 AM
1 votes:

kittyhas1000legs: Rincewind53: wooden_badger: I wonder what these "antenna farms" look like.  What if the channel being received is one of those low VHF ones that need a decent size antenna anyway. There's still a few of those left.

The antennas are the small things on the top. They've done a great job with miniaturization. They then stack these things like server racks.
[www.crainsnewyork.com image 850x637]

Thing is, can one individual antenna in that thing pick up the channels desired, or do you need them to be in the array like that to pick up the channels? I sure as hell can't get the local FOX channel from three miles away with that. I need at least a wand if not rabbit ears. Aereo's argument may hold some water if each antenna is capable of reception, but it looks to me that you need the dime-sized antennae in an array to have reliable reception.


Allegedly each antenna is picking up each channel separately.
2014-04-21 11:23:50 AM
1 votes:
As someone that was watching a torrented copy of GoT S4Ep03 at 10:45pm last night, I'm getting a chuckle....

I really think the Generation that are the CEO's today don't have effing clue #1 about media in the information age and how to monetize it.
Issues like this, and the fact that within minutes I can have any show or sports match I want, shows me approximately how out of touch with reality these people are, with their trillion dollar compensation packages, bonuses and golden parachutes.

Author is right, Broadcasters are the ones who are farked either way, but it's not people like this company, or people like Me doing it to them - it's they that have done it to themselves by spending all their money and effort to control a virtual monopoly instead of innovating. (RIAA , MPAA anyone?)

Can't have it both ways, crooks... but enjoy the days as they pass, because your time is at an end. As the current generations - the ones with devices and connectivity ubiquitous to their daily lives - come of age, your power and influence will fade, it already is... these are your death throws - and as we get more judges in the circuit that understand technology - your lack of understanding will come home to roost...it already is.  They have already lost, and that is why they fight so now.

All I can do is laugh...... They had this coming and even with a win in this case, they've already lost the war.

We're getting smarter, and they're standing on their laurels...

How does history show that playing out??
2014-04-21 11:20:11 AM
1 votes:

Rincewind53: Theaetetus: Rincewind53: But in aggregate, and ignoring their (admittedly very clever) technological ways around the problem, it's very clear that what they're doing is recording programs off of TV and then charging other people to watch them. They're exploiting a loophole that the Second Circuit made a few years ago, but there's no really good argument for why the loophole should exist.

Aereo is likely going to lose, as a result. Even if their technology actually fits the loophole (which it does seem like it does), the Supreme Court doesn't have to act like idiots and is allowed to call a spade a spade.

I don't know about that... The Supreme Court can't simply rewrite the copyright act as necessary to close loopholes - that's Congress' job, and is why 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.

They don't even have to go that far; they just have to tweak the definition of "performance" to exclude large-scale middleman situations like this one.


Can't - "perform" is explicitly defined in 101. They'd have to tweak the definition of "public", which appears in this circular definition:
To perform or display a work "publicly" means-
(2) to transmit or otherwise communicate a performance or display of the work...  to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.


But even then, tweaking that to say "the public is 'more than two people who don't know each other'" or something may have huge unintended effects. It would be better to say "Congress, get your shiat together and write a real definition."

/"publicly" means "to the public"? Gosh, legislators sure are smrt.
2014-04-21 11:15:50 AM
1 votes:

Enuratique: Now let's say I come along and figure out how to record these audio streams for my own private enjoyment. Honestly this is probably a violation of the EULA, but let's assume for the sake of argument that it's legally allowed. I then turn around and run a service that lets others record and access songs from my Pandora stream. Again, for each subscriber, I create an additional virtual instance and that person's recordings are only accessible to them. I charge $8 a month for this, since it takes a lot of power/bandwidth/ram to run all those virtual instances.

I'm now profiting off of content to which I neither own the copyright to nor have a license agreement for.

/I believe this is the sticking point


That's where your analogy breaks down... Recording those audio streams  is a violation of the EULA, which means you don't have licensed copies. But when Aereo puts an antenna in the air, they aren't agreeing to any EULAs or license restrictions: they're simply receiving a public broadcast. It's been well established that CBS can't come to you and demand royalty payments for your rabbit ears.
2014-04-21 11:10:55 AM
1 votes:

Rincewind53: But in aggregate, and ignoring their (admittedly very clever) technological ways around the problem, it's very clear that what they're doing is recording programs off of TV and then charging other people to watch them. They're exploiting a loophole that the Second Circuit made a few years ago, but there's no really good argument for why the loophole should exist.

Aereo is likely going to lose, as a result. Even if their technology actually fits the loophole (which it does seem like it does), the Supreme Court doesn't have to act like idiots and is allowed to call a spade a spade.


I don't know about that... The Supreme Court can't simply rewrite the copyright act as necessary to close loopholes - that's Congress' job, and is why 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.
2014-04-21 11:04:24 AM
1 votes:

Necronic: For the life of me I can't imagine how Aereo can win this argument.


From the syllabus of Cartoon Network v. CSC Holdings, back in 2008:
Copyright holders' exclusive right of public performance applies to transmissions of performances to places open to public or where substantial number of persons are gathered, or to public "whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or different times," 17 U.S.C. §101; in present case, playback transmissions from defendants' "remote storage" digital video recorder system, which permits customers to record programs on servers at defendants' central facility for future playback at home, are not unauthorized performances "to the public," and thus defendants are entitled to summary judgment on plaintiffs' claim for direct infringement of their right of public performance, since transmissions are made using single unique copy of work that is made by individual subscriber and can only be decoded by subscriber's cable box, and thus only single subscriber is "capable of receiving" transmission, and since "transmit clause" of Section 101 contemplates potential audience of particular transmission, not potential audience of underlying work whose content is being transmitted, in that potential audience of any copyrighted audiovisual work is general public; fact that unique copies of same work are used to make transmissions limits potential audience of transmission, and is therefore relevant to determination of whether transmission is made "to the public."

Mind you, that was only from the 2nd Circuit, but I believe SCOTUS denied cert in that case.
2014-04-21 11:01:45 AM
1 votes:

Hobodeluxe: 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.

why? the ads are reaching more homes not less.


Right.  Their revenue might go down because they wouldn't be able to extract as much from the cable company in carriage fees, but definitely not because of loss of ad revenue.

That said, the desirable OTA spectrum space is being nibbled away bit by bit.  We now have a VHF TV band that's largely unused for TV (part of which could have easily been re-purposed for an expanded FM service), but it's pretty much worth nothing to the mobile comm companies.

That mega-watt UHF transmitter is a big expense that many "broadcasters" may soon want to do without.
2014-04-21 10:44:08 AM
1 votes:

JackieRabbit: That or the number of dollars they paid in income tax since the last election.


Considering how much some of them dodge taxes, this could actually reduce corporate influence.
2014-04-21 10:41:41 AM
1 votes:

wooden_badger: wxboy: vpb: I don't see why it's such an issue.  OTA TV makes money from advertisements and Aereo would help them reach a larger audience and make more money.  It's supposed to be a replacement for an antenna IMHO.  I don't see that it's any different from making a high gain antenna.

OTA TV also makes a lot of money from charging retransmission fees to cable companies just like a regular cable channel does.  In that, Aereo isn't all that different, and probably should be paying up (since they're now making money providing someone else's product without permission).

That said, I'm not sure how a cable company typically receives a feed from the OTA broadcaster (satellite or fiber or antenna).

In the early days, I believe the cable company picked up the signal with an antenna on a nice high tower.  Nowadays I suppose the digital signal can just be sent to them from the OTA station, then it gets processed some more to squeeze it onto the cable/fiber.


It wasn't so high tech in the early days, or even these days. A lot of times cable companies use trees, wood poles, 2x4's nailed to poles, whatever is handy, to reach broadcast from  the local stations with a regular old TV antenna. There's more to it after that, like microwave links to the central office in some cases, but for the most part technical knowledge for the general public has improved over the years since the early days of cable - if you were to see an early cable TV system, you would say to yourself, "WTF? I could do that."

The larger the system, both in terms of number of subscribers and distance, the more involved it becomes. Having a simple antenna pointed at a station is pretty cheap and easy - hardwire costs money. The expense come with getting the signal to people's homes. You see cable line tacked on power poles and telephone poles. The cable company has to lease space on those poles from whoever owns them. That's why wireless is cool, and profitable.
2014-04-21 10:38:42 AM
1 votes:

TofuTheAlmighty: JackieRabbit: So, cannot Aereos not be considered a subscription antenna provider?

Aereo is essentially a leased antenna.

Regardless, the broadcasters will win because they have money and the Roberts' court sides with powerful interests every single time.


My thinking as well. Hell, they will probably soon allow corporations to vote and cast a number of votes equal to the number of employees they have. That or the number of dollars they paid in income tax since the last election. America is now an economic oligarchy, not a true democratic republic.
2014-04-21 10:23:40 AM
1 votes:

Name_Omitted: vpb: I don't see why it's such an issue.  OTA TV makes money from advertisements and Aereo would help them reach a larger audience and make more money.  It's supposed to be a replacement for an antenna IMHO.  I don't see that it's any different from making a high gain antenna.

OTA TV pays for content by market size.  This is how small markets can afford content; if Smalltown USA had to pay NYC rates, that would be impossible for the small broadcasters.  If NYC payed Smalltown's rates, there would not be enough money to justify developing content.

Having a third party make those markets completely arbitrary based on where THEY happen to put their antenna will mess up the system.


They only allow you to see the region based on your IP address.
2014-04-21 10:16:27 AM
1 votes:
I, too, think the broadcasters will prevail. If they don't, the ruling will impact far more than Aereo and the broadcast industry. However, today's digital televisions cannot even receive a broadcast without a special antenna. The sellers of these devices are not required to pay licensing fees. Telecommunications also transmit content between mobile and other devices without having to pay a licensing fee. So, cannot Aereos not be considered a subscription antenna provider?
2014-04-21 10:06:40 AM
1 votes:

wxboy: vpb: I don't see why it's such an issue.  OTA TV makes money from advertisements and Aereo would help them reach a larger audience and make more money.  It's supposed to be a replacement for an antenna IMHO.  I don't see that it's any different from making a high gain antenna.

OTA TV also makes a lot of money from charging retransmission fees to cable companies just like a regular cable channel does.  In that, Aereo isn't all that different, and probably should be paying up (since they're now making money providing someone else's product without permission).

That said, I'm not sure how a cable company typically receives a feed from the OTA broadcaster (satellite or fiber or antenna).


In the early days, I believe the cable company picked up the signal with an antenna on a nice high tower.  Nowadays I suppose the digital signal can just be sent to them from the OTA station, then it gets processed some more to squeeze it onto the cable/fiber.
2014-04-21 09:54:27 AM
1 votes:

wxboy: vpb: I don't see why it's such an issue.  OTA TV makes money from advertisements and Aereo would help them reach a larger audience and make more money.  It's supposed to be a replacement for an antenna IMHO.  I don't see that it's any different from making a high gain antenna.

OTA TV also makes a lot of money from charging retransmission fees to cable companies just like a regular cable channel does.  In that, Aereo isn't all that different, and probably should be paying up (since they're now making money providing someone else's product without permission).

That said, I'm not sure how a cable company typically receives a feed from the OTA broadcaster (satellite or fiber or antenna).


So OTA double bills. They get the advertising and fees from the cable companies who then charge us and drop other commercials on top of the OTA ones.

/must go derper
ZAZ [TotalFark]
2014-04-21 08:52:51 AM
1 votes:
There are a lot of players here, not only two. CBS' plan B for simultaneous streaming hurts its affiliate stations.
 
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