

An Update on Aereo - acjohnson55
http://blog.aereo.com/2014/06/letter-consumers-standing-together-innovation-progress-technology-update-aereo/

======
kevincennis
Aereo employee here.

Just wanted to say "thank you" to the HN community for all the support over
the past few years. Some of the most interesting and thoughtful analysis I've
seen on Aereo has been in the comments here. Of course, some of the worst,
too. But that's what makes it Hacker News.

This has obviously been a pretty difficult week for Aereo, and lots of people
are speculating about what will happen to the company – but I don't think
we're done just yet.

~~~
burnte
One would think, since SCOTUS said since Aereo walks, talks, and acts like a
cableco, then Aereo is also available to license rebroadcast rights under the
compulsory license clause, as cablecos are.

That said, I think Aereo is wonderful, but blew it in oral arguments before
SCOTUS. I've never heard such a pathetic display as in this case. Example:

Chief Justice Roberts served up Aereo a softball with this statement, "I mean,
there's no technological reason for you to have 10,000 dime­sized antenna,
other than to get around the copyright laws."

To which the lawyer's reply started with "Well." Right there the case was
lost. Rather than answer this way, "Well, the point of the copyright laws,
though, Your Honor, shouldn't turn on the number of antennas..." He should
have replied:

"On the contrary your honor, we do it this way to _adhere_ to copyright law.
The entire point of our service is a remote antenna and DVR service, and in
order to do that and comply with copyright law, we have to have thousands of
individual antennas. To do otherwise would violate the letter and the spirit
of the law, and we have chosen instead to abide by it and provide a very
specific service, we provide a rented, individual conduit. We are not
duplicating cable systems, we are simply lengthening the wire between the
consumer and their individual antenna."

But no. He started with a weasley sounding answer and blew the case. Aereo
deserved to win, and could have. I hope Aereo goes the compulsory license
route. Broadcasters can't both claim Aereo is a cable company and thus must
buy licenses, and that Aereo isn't a cableco and isn't eligible for a
compulsory license.

~~~
kevincennis
First off, I think we were all exceptionally happy with our counsel. It's easy
to look at these things from the outside and say "Hey, I'm a smart guy. Here's
how I would have argued it"... but the reality is that it just isn't that
simple.

As for the answer... Justice Roberts asked for a _technological_ reason. He
fully understood the _legal_ reason, even if he didn't necessarily agree with
it.

~~~
larrys
"Justice Roberts asked for a _technological_ reason."

But counsel didn't answer (from what I'm reading, if I'm wrong please correct
me obviously) with a technological answer.

If I say to you "speed isn't important to me so why should I get an SSD drive
instead of a hard drive" you need to answer that question in a way that the
person asking says "ok they've answered my question".

~~~
ghshephard
There was no technological reason. Aero exists solely to comply with the
letter of copyright law, and, I believe, they do. (As did Scalia, Thomas, and
Roberts).

As it turns out, complying with the letter of the Law, was not sufficient to
win their day in court.

Ben Thompson, in his _awesome_ daily update to subscribers, did a great
constitutional law analysis of the case (In addition to being a Technology
analyst, he also majored in Constitutional Law)

A small excerpt (I highly encourage you to sign up for his daily update at
[http://stratechery.com](http://stratechery.com), it's frequently the
highlight of my day)

 _You will note, of course, that the author of this decision was none other
than Justice Breyer, and the author of the dissent one Justice Scalia. What
Justice Breyer has effectively argued is that the sort of activity that Aereo
is engaging in was clearly the sort of activity that Congress was seeking to
legislate in the Copyright Act of 1976. And, quite frankly he’s right.

Scalia, on the other hand, argues that Aereo is abiding by the letter of the
law: they have carefully implemented a solution that abides by the Copyright
Act of 1976’s prohibition on public performances (your own private antenna!),
and that is enough to make it legal. You can see the different doctrines
clearly in Scalia’s admission that Aereo is exploiting a loophole._

~~~
larrys
"There was no technological reason."

Ok stipulated. But under the "every man for himself", um, "doctrine" the
attorney should have made a more noble effort even if it ended up in failure.
[1]

Kind of the related a bit to the "better to be thought a fool than to open
your mouth and remove all doubt". Here give it a try the best you can. [2] In
this case an answer was needed to the question. Not a white house dodge.
Stipulate it didn't exist. Doesn't mean he couldn't have creatively offered
something that at least attempted to pass the smell test. And I don't think
that would have been disrespectful either.

[1] At the very least to burnish his reputation.

[2] Isn't that what attorney's do? Try to win the case even against all odds
with a "guilty" client? Buy being creative?

~~~
ghshephard
I actually agree with you in the "Don't Dodge" part. He could have saved
everyone time and effort by just saying, "No. The particular configuration of
equipment at Aero exists solely so that they abide by the law, and, in fact,
they do abide by the law, obeying all relevant statutes regarding
transmission."

There was no need to start with a "Well" when it was abundantly clear that
Aero is basically a very clever hack on the legal system, which,
unfortunately, ran into some justices who don't care so much for the letter of
the law, as they do the spirt of the law.

------
narrowrail
I think we should just reclaim the EM spectrum (IIRC, roughly 450-700 MHz)
used by the broadcasters to build a better wireless network owned by the
people. Perhaps a mesh network of sorts; the specifics could be worked out,
but it should be considered. What a large piece of spectrum to waste on one-
way communication, mostly filled with crappy adverts.

~~~
Zancarius
I kinda like this "scorched earth" policy: If public airwaves paradoxically
cannot be used by the public because of performance/copyright laws, why not
just scrap it?

I had a curious thought this morning, probably echoing some of the sentiments
I've read here (and elsewhere). We're overlooking the precipice of a sort of
"regulation paralysis" that's threatening the tech industry in the US. If we
continue down this path, in 20 years, we're going to be substantially _behind_
other nations. And to what end? To protect incumbent companies that have deep
pockets for lobbying efforts in their financial favor?

Where was that study that suggested reading news leads to depression? I should
stop while I'm ahead.

------
eck
Could Aereo pivot to selling a physical device that one would plug into a home
router and do roughly the same thing?

~~~
AJ007
That would be the right direction. From my understanding, there are devices
like that now but the price points are higher up front and technical to set
up. A plug and play approach with a monthly lease could work (assuming you
can't actually make one for $30.) The bigger issue is, can this model scale
and survive 5 years out? If it can not, it may be better to pull the plug.

This is a bigger loss to the TV stations than it is to Aereo users. How many
Aereo users are going to go out and re-connect their televisions? Even if they
do, the limitations can only reduce their viewing time. Friends who still have
antenna televisions or were using Aereo largely did so because their wives
liked to watch stupid reality TV shows. I never connected an antenna to my
television. I have not had cable for three years. Broadcast TV stations could
not make me a viewer if I was paid to watch. Between Netflix, Amazon, iTunes,
Hulu, Youtube, and Twitch why would I choose to watch broadcast? It is only a
matter of short time before the mass market sees it this way as well.

~~~
mikeryan
_Between Netflix, Amazon, iTunes, Hulu, Youtube, and Twitch why would I choose
to watch broadcast? It is only a matter of short time before the mass market
sees it this way as well. reply_

A few main reasons the mass market won't see it your way.

1\. Sports - you can't generally stream sports in your local market.

2\. TV shows don't hit those services usually until a year or so after their
original air date.

3\. There's a lot of TV viewing that happens more on a 'browsing' basis. Food
Network, DIY, Discovery, a lot of the viewing that happens on these networks
are because folks are just bored and scanning the channels. Non serialized
shows like cooking or The Daily Show, have a hard time transitioning to the
services you mentioned.

4\. Cost effectiveness. Once you add up the cost of many of the services you
mentioned the cost of monthly fees and individual show rentals is going to get
very close to your normal cable bill.

~~~
mynameisvlad
TV shows on Hulu come out the day after (and usually on the network's website
as well) except for some like Fox, who put it under subscriber-only for a
week.

------
aianus
Can someone explain to me how it hurts the content owners to have more
eyeballs watching their freely broadcasted, advertisement supported shows?

~~~
tptacek
One issue is subtle. Broadcast television appears to be free for any consumer
with an antenna, but it really isn't. The tiny minority of consumers who watch
antenna TV are subsidized by the overwhelming majority of consumers who pay to
watch TV via DBS, cable, or IPTV. The revenue streams from retrans fees fund
content development and acquisition.

Further, both broadcasters and pay TV providers are unhappy with any streaming
service that interferes with advertising, either by making it simple to skip
ads or by making it harder for advertisers to value airtime.

~~~
seliopou
I think the last part of your answer is the important one. Eyeballs don't
matter if you can't count them.

~~~
pbreit
But with IP delivery the counting is perfect? And you even have better
demographics.

------
fencepost
I wasn't an Aereo customer, but were they streaming in standard video
streaming formats? If so, would it be viable for them to _really_ lease the
antennas to people and stream the non-decoded HDTV signal? It would require
some sort of software defined radio decoding on the client side and would
certainly reduce the features they could offer easily, but by doing that they
basically become a simple signal repeater service - a commercial "range
extender."

~~~
kevingadd
That kind of nitpicky detail won't matter to the entertainment lobbies that
effectively own a huge chunk of our government. Aereo was already built on a
bunch of clever, detail-focused legal loopholes and caveats that should have
protected them, but the case got reversed at the supreme court after they won.

------
DanBlake
Forgive my ignorance of the judicial system, but why would the issue be
returned to the lower courts?

My understanding is that a Supreme Court decision was about as final as
something could get- Is there any paths to Aereo being able to win some other
battle and potentially come back to life?

Can you appeal a Supreme Court decision?

~~~
eli
IANAL, but I believe the Supreme Court only ruled on one specific claim in the
lawsuit not the lawsuit itself. There were other claims and the lawsuit is
technically ongoing, but this one crucial aspect has been decided.

No, you cannot appeal a Supreme Court decision.

~~~
seliopou
You can't appeal a Supreme Court decision, but you can invalidate it by
changing the law or amending the Constitution.

------
digdigdag
The battle may have been lost but the fact that Aereo became as successful as
it was in the short time it existed is a step in the right direction.

Unless it's encrypted information, I find it absurd that the courts would side
with the cable companies on what is essentially a beam of publicly accessible
light.

~~~
mrcwinn
I'm sorry, I completely respect your opinion, but frankly any company that can
"use" "free" data from the air and resell it much cheaper than, say, the $150
cable bill, is going to be successful. That doesn't make it lawful, or even
good for content creators.

I know I hold a very unpopular opinion in this forum, but I think it's unwise
to treat Aereo like some angel of free speech. The truth is, this is a for-
profit company with investors hoping to make money. They make that money by
shortcutting the existing distribution system and selling something very
cheaply that they got for "free."

Is it good for consumers? In the short-term, it seems to be. People love the
service as far as I can tell and it's cheap.

But in the long-term, I worry about a service that syphons money away from
content producers (and distributors, to whom I'm less sympathetic) and puts it
instead in their own pockets.

I simply can't wrap my brain around how content can be produced, grabbed for
free, and - importantly - re-sold for profit. I do not think this is a "public
demonstration" of work.

Finally, I think it's unfair, as some have, to claim that SCOTUS is a bunch of
thieves in bed with Comcast on one hand, but heroic and commendable on another
hand with regard to the warrant cell phone case. It may actually be —
actually, now it _is_ the case - that if you have an exception with the law,
you will need to work to change it.

~~~
Dylan16807
Why are you putting free in quotes? OTA television is completely free to
consume.

Nobody is being undercut. Cable companies use most of that $150 to buy private
content. Nobody is advocating for splicing into private wires and making
copies.

We're in this weird situation where local TV companies tricked their
distributor into paying them, even though they previously shouldered the costs
of distribution themselves. I see that as the biggest injustice here.

>I simply can't wrap my brain around how content can be produced, grabbed for
free, and - importantly - re-sold for profit.

Imagine a taxi that brings you to a free concert. There is nothing wrong with
making a profit off of providing _convenient access_ to something. That's what
every ISP in the world does. They're not selling the TV shows. They're
connecting you with the antenna that sends out free TV.

