
Appeals court upholds legality of Aereo’s “tiny antennas” scheme - yk
http://arstechnica.com/tech-policy/2013/04/appeals-court-upholds-legality-of-aereos-tiny-antennas-scheme/
======
DannyBee
The dissent on this bothers me as a lawyer. It basically says the whole thing
is a sham to use a perceived "loophole in the law".

IE By complying with the exact requirements of the law, they are committing a
sham.

It's a policy argument, not a legal one.

A sham is doing something like "i'll sell my brother my house for $1". That's
a sham. You are doing something to try to trivially comply with contracts law
(which requires adequate consideration), but the $1 you are giving is really
trying to cover up the fact that it's really a gift.

But that's not the argument the dissent makes, the argument it makes is "i
don't like this behavior, so i will villify it" and act like it's a sham. The
law imposes plenty of technical barriers to doing things. I could make an
amazing wireless system if i could use whatever transmitter power i liked, but
the law prevents me. The fact that they could use one large antenna is exactly
right, but it changes nothing, because _the law appears to prevents them from
doing so_. Following the technical requirements of FCC law is not a sham, it's
"what the law requires you do". Following the technical requirements of
copyright law is not a sham, it's "what the law requires you do".

~~~
rayiner
As a lawyer, it was the majority's approach that bothered me. Simply, this
hyper-technical approach makes for bad law. The court would've been better
served here just saying it was fair use because the ads were preserved and the
streams contained content that could be watched for free over the air anyway.
Throw in the additional public consideration in this case, which is that the
content owners are taking advantage of public airwaves to air this content in
the first place, and the need to perpetuate this bizarre loophole disappears.

The problem here is: what does "public performance" mean in the context of
internet broadcasts? Cablevision just covers that consideration with mud. The
answer is probably: the distinction of "public performance" is completely
meaningless when talking about internet streams.

~~~
asr
As a law student, I think both of these are defensible positions, and neither
approach bothers me. I like the result as a policy matter, but don't know
enough about the precedents or the Copyright Act to comment on the result as a
legal matter.

TLDR of the opinion for the rest of HN:

"Public performances" are subject to copyright protection. The Copyright Act
says: "To perform or display a work 'publicly' means to transmit or otherwise
communicate a performance or display of the work to a [public place] 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." That last
part was written specifically so that cable companies are engaged in public
performances (three boos for Congressional idiots who write laws specific to
one technological era and then don't update them).

The majority says because that sentence talks about public transmission, it
implies there's such a thing as private transmission. And transmission of a
unique server copy to a specific customer is a private transmission. (See pp.
29-30.) They think this case is about a "rooftop antenna [that] is rented from
Aereo and its signals transmitted over the internet."

The dissenter says that "public performance" includes any stream whose
fundamental purpose is to retransmit live TV to a large audience. And that's
what he thinks Aereo is doing. (See pp. 49-50.) He thinks Aereo is
functionally doing the same thing as a cable company, and that "Congress made
clear its intent to [cover] ... 'all conceivable forms and combinations of
wires and wireless communications media,'" so it doesn't matter whether
there's a private copy on the server or not.

(Link to opinion:
[http://www.ca2.uscourts.gov/decisions/isysquery/82dcbc3a-986...](http://www.ca2.uscourts.gov/decisions/isysquery/82dcbc3a-9861-4715-905f-3c0266f445f2/1/doc/12-2786_12-2807_complete_opn.pdf))

~~~
Retric
What I find interesting is there is precedent that doing the same thing with
DVD players is not legal.

~~~
bd_at_rivenhill
"doing the same thing with DVD players" implies to me that you would have a
set of large warehouses containing stripped down DVD players, DVDs, and some
automated mechanism of loading and unloading DVDs into players which ensures
that a given DVD is only watched by a single customer at a time. Would this be
illegal?

~~~
Retric
_Would this be illegal?_

Yes.
[http://www.techdirt.com/articles/20110802/02374615353/court-...](http://www.techdirt.com/articles/20110802/02374615353/court-
shuts-down-zediva-apparently-length-cable-determines-if-something-is-
infringing.shtml)

~~~
bd_at_rivenhill
I wasn't aware of this, but I don't agree with your assertion that it is
illegal. A district court judge wrote what appears to be a very poorly
considered decision in the process of issuing an injunction, and Zediva didn't
have the resources to keep fighting. I expect that this would have been
reversed on appeal because this service was almost exactly the same as that
provided by Netflix when they mail you a DVD; the only difference is that you
take physical possession of the disk for a period of time with Netflix and you
did not with Zediva. In neither case was the performance "public" in the sense
that unrelated parties were permitted to view the video at the same time as
the renter.

------
MikeKusold
I've read the NYT article instead (
[http://www.nytimes.com/2013/04/02/business/media/aereo-
wins-...](http://www.nytimes.com/2013/04/02/business/media/aereo-wins-in-
appeals-court-setting-stage-for-trial-on-streaming-broadcast-tv.html?smid=tw-
share) ), but the following excerpt really rubbed me wrong:

    
    
        A group of other broadcasters, including Fox and PBS,
        said they intended to move toward a trial. “Today’s 
        decision is a loss for the entire creative community,”
        the group said in a statement. “The court has ruled that 
        it is O.K. to steal copyrighted material and retransmit it 
        without compensation. While we are disappointed with 
        this decision, we have and are considering our options 
        to protect our programming.”
    

Why is PBS fighting this? They are subsidized from the government with the
goal of providing educational television to every one. If anything, PBS should
think this is a great idea. More viewers mean more potential donors during
phonathons.

~~~
warfangle
This is the same battle that broadcasters fought against cable companies in
the 60's and 70's, when cable companies basically sold access to a large
antenna some miles away through their coaxial: their primary customers often
lived in places where television signals did not reach (valleys, etc).

Everything about this rubs me the wrong way: from PBS fighting it to there
even _being_ a market for Aereo (it shouldn't be necessary, given modern
technology).

~~~
Stwerp
> Everything about this rubs me the wrong way: ... to there even _being_ a
> market for Aereo (it shouldn't be necessary, given modern technology).

Sadly, though, there is a _huge_ hole in the market for cheap, easy-to-setup
DVR boxes for over-the-air broadcasts. Mythtv is too tedious for the average
consumer to bother with, and items like HD Homerun still require some sort of
backend server (of sorts) running to schedule record times. Tivo is perhaps
the cheapest option, but its monthly service costs are still higher than this
option (and still requires separate purchase of a box).

For $8 a month for a 40 hour DVR box, this sounds like a pretty sweet deal to
me.

------
pkamb
I remember a service that put a physical DVD in an individual DVD player in a
warehouse somewhere and streamed it to you. Essentially the same thing as
this? Looks like it was shut down.

[http://arstechnica.com/tech-policy/2011/08/judge-orders-
shut...](http://arstechnica.com/tech-policy/2011/08/judge-orders-shutdown-of-
dvd-streaming-service-zediva/)

~~~
Guvante
> Judge Walter also seemed unimpressed by Zediva's argument against an
> injunction. "Defendants claim, without any evidence, that an injunction
> would significantly harm, if not destroy, their business," he wrote. He
> ruled that the harm to movie studios from lost revenues outweighed any
> hardship Zediva faced.

That is ridiculous. "You are right, it would destroy your business, but it
might hurt their bottom line a little bit".

~~~
icebraining
_You are right, it would destroy your business_

Uhm, in your quote, he clearly says the claim of business destruction is
"without any evidence".

~~~
njharman
How much evidence do you need? Our entire and sole business is this thing you
are about to injunct. Do they have to prove they don't also grow magical money
trees?

------
chrischen
They are forcing businesses to treat digital bits as if they are physical
objects... unless of course I'm a consumer who pays for the digital bits, in
which case I'm now just licensing it. How convenient... for their profits.

~~~
thatthatis
The premise of your objection is that copyright law is anything but a game of
"i win" played by content owners (ref Adam Sandler's film Big Daddy -
<http://youtu.be/8HUvTp8ZcJs?t=8s>)

------
mmanfrin
It is absurd that they have to keep thousands of copies of the exact same data
because laws are skeuomorphic.

~~~
AjithAntony
What if they had thousands of logical copies, but implemented a de-duplicated
storage back-end.

~~~
SoftwareMaven
Given that the ruling talks about each user having their own storage space
that isn't accessed by others, I doubt they could do this. Further, the
plaintiffs would be looking for any technicality to get them with, so I'm sure
Aero wouldn't have risked it.

Otherwise, it's as simple as using hard links to the files.

~~~
wmf
Maybe there's a market for storage that is deduped but plausibly claims to not
be.

~~~
trotsky
Deduplication is just an extremely efficient form of dictionary compression.
Surely they're not storing raw ATSC.

------
guimarin
A common complaint among technologists will be that it's a waste of resources
to keep multiple copies of the same 'recording'. I don't dispute that.
However, thankfully there seems to be an upper bound to the size of a
recording, and as storage gets cheaper and cheaper, this will be less of an
issue. [Note: Even though video resolutions will get better, like audio did,
eventually I imagine will hit a similar upper bound. ]

------
xur17
"And like Cablevision, when 1000 users record the same program, Aereo creates
1,000 redundant copies."

I'm curious if they use some sort of filesystem that splits files into chunks,
and stores similar chucks once, similar to what Dropbox does. Would this could
as storing 1,000 redundant copies if the de-duplication is done at the file
system level?

edit: After reading further, it appears that they do store duplicate copies of
the file. I am curious how this type of de-duplication would work with the
law.

------
marssaxman
It's a silly, wasteful workaround to a silly, wasteful law. Go technologists!
Get with the future, lawyers - it's already turned into the present!

------
caf
I think they should probably be able to get away without individual antennas,
too - as long as they still have individual tuners. After all, there's plenty
of apartment buildings where everyone shares a single antenna, and those
aren't considered an infringement of the public performance right.

------
GhotiFish
Good parody is one where you can't tell if it's real or fake.

On this day of days, I'm undecided. Otherwise I'd believe it.

~~~
mark-r
No, not parody. They've been discussed here on HN many times before, here's
just one example: <https://news.ycombinator.com/item?id=4454852>

------
baddox
Not The Onion. This is really how ridiculous copyright law is.

------
short_circut
I love the amount of creative lawyering that happened here.

~~~
jpdoctor
And the creative engineering in order to beat the letter of the law (but what
a waste of time and resources...)

------
gpvos
Copyright, you so crazy.

------
meisterbrendan
I find it very sad that in the 21st century Americans... still consume
raisins. Gross.

------
cmbaus
Wait, this isn't an April Fool's joke?

