
Supreme court: Aereo is violating copyright law [pdf] - acjohnson55
http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf
======
grellas
The Copyright Act is a federal statute that protects any public performance of
a copyrighted work from infringing uses.

Aereo took what were undisputedly public performances of works from
broadcasters to the public, intercepted them, and by a feat of what amounted
to technological legerdemain turned them into what it argued were no longer
public performances but, instead, individualized transmissions from its
service to each of its end users as an audience of one.

In this case, the Supreme Court rejected that argument, relying heavily on the
idea that it was merely interpreting a statute (the Copyright Act) that had
been amended by Congress in 1976 in part to overturn a couple of Supreme Court
cases that had interpreted the prior Act to permit cable-TV style
transmissions of copyrighted material free of copyright restrictions. The
Court held that, in doing so, Congress intended to bring cable-like services
such as Aereo into the Act's sweep regardless of the particular technological
ways in which it handled the copyrighted material as it re-transmitted it to
its users. Treating such technology, in effect, like a black box, the Court
emphasized that, regardless of its innards, this service appeared to all
concerned - to broadcasters, to viewers, etc. - to be functioning just like a
cable service and therefore fell squarely within the Act's coverage as
Congress had intended to modify it in making the 1976 amendments.

The most fascinating part of the decision, in my view, was how the Court
arrived at this result while simultaneously trying to narrow its impact so
that modern technological innovations would not be hit by its shrapnel. The
Court not only did so but did so _emphatically_. Indeed, it devoted an entire
section IV (pages 15-17) of its opinion to that issue. "We agree", said the
Court, "that Congress, while intending the Transmit Clause to apply broadly to
cable companies and their equivalents [i.e., Aereo], did not intend to
discourage or control the emergence or use of different kinds of
technologies." The Court then goes on to suggest (without deciding) a number
of potentially key distinctions by which things such as, e.g., cloud music
services might not in any way be infringing, including the prospect of fair
use or the fact that the user receiving a transmission from the service may
already own the copyrighted works being transmitted. I believe this is a
strong signal from the Court that lower courts are not to ham-handedly
interpret copyright law to stifle innovation but are to apply it carefully to
prevent its abuse.

All in all, this decision represents a guarded upholding of traditional IP
protections that prevents the use of technology to enable free-wheeling use of
broadcasted materials while at the same time limiting its holding to that
narrow sphere. Given the technical wording of the Act, it could just as easily
have gone the other way and upheld the Aereo service as nothing more than
something that facilitates individual, "private" performances via a streaming
technology. But that would certainly have glorified form over substance and, I
think, the Court got it right in the end.

~~~
rayiner
Wonderful summary, and I agree with your conclusion: people should take this
as the Court saying "no" to Aereo's contrived, free-riding business model, and
others like it, not to new technologies that enable people to store and access
content which they already own [a license to].

~~~
coldpie
Can I set up my own antenna in New York and stream its recordings back to
myself in Minneapolis? How long is my antenna allowed to be before it
magically switches to becoming illegal? This is an incredibly stupid decision
that raises many more questions than it answers.

~~~
skwirl
If you read the decision, you will see that you are absolutely allowed to do
this. The length of the antenna or wire has nothing to do with anything. What
is not allowed is _public_ rebroadcasting (or what the law refers to as
"performing").

The entire reason this law was written is because under an old law, cable
companies ("community antenna television" in that day) were setting up
antennas and running cable to multiple homes, charging the users for it, and
not paying anything to the broadcasters/copyright holders. They made the same
claim Aereo is making now - we're not rebroadcasting, we're just a big antenna
connected to multiple homes. The law was written specifically to address this,
but it was written in a generic way to avoid loopholes... like exactly the
loophole Aereo claimed existed.

The gist of the supreme court decision is that, despite the behind the scenes
trickery, Aereo is essentially no different from a cable company as far as
that law was written. The intent of the law was certainly to restrict
companies exactly like Aereo, and the letter of the law gives the court the
ability to enforce this intent.

Before you call the decision "incredibly stupid" you might want to actually
read it.

~~~
coldpie
> you are absolutely allowed to do this.

So you agree that I have a legal right to accept the OTA transmission in New
York, to make a personal copy of the transmission, and send that copy to
myself in Minnesota for viewing.

This is precisely what I do by hiring Aereo. There is no difference except I
pay someone else to do the development and maintenance since I lack the skills
or free time to travel to New York and set this up myself.

Suppose we look at it through a slightly different lens. I take a file to
which I have a legal right, say some copyrighted material that I have paid
for. I upload this file to my personal Dropbox account, which I share with no
one. Then I travel across the country and download it for viewing.

Has Dropbox just committed copyright violation? If not, how does this differ
from the scenario I gave in the first two paragraphs, where apparently Aereo
was committing a copyright violation?

~~~
alexqgb
If the person you're paying is doing the work, then it's obviously not for
_their_ personal use. It's for yours. So they're doing it for money on someone
else's behalf, which throws the "personal, non-commercial use" argument
straight out the window.

Moving on to Dropbox. Dropbox has no involvement in the selection of the file
in question, or even the type of file, and moreover, they're not the ones to
place it on their system, you are. Aero, on the other hand, knows exactly what
they're receiving because that's what their entire system is explicitly and
narrowly set up to receive. They can't claim ignorance as to what they're
capturing when their basic sales proposition hinges on a specific declaration
as to what - exactly - they're capturing and re-selling.

In other words, the arms-length relationship between the service provider and
content that protects Dropbox under the DMCA's Safe Harbor provision does not
exist with Aero.

~~~
coldpie
> If the person you're paying is doing the work, then it's obviously not for
> their personal use. It's for yours. So they're doing it for money on someone
> else's behalf, which throws the "personal, non-commercial use" argument
> straight out the window.

Boy is Geek Squad going to be in trouble when it's discovered how many TV
installations they've assisted with are used for pirated material.

> They can't claim ignorance as to what they're capturing when their basic
> sales proposition hinges on a specific declaration as to what - exactly -
> they're capturing and re-selling.

I don't understand the distinction. In both scenarios, capturing an OTA
broadcast and purchasing a digital file, I have the right to own and make
personal copies of the content. I don't see how the law can make a distinction
based on how I acquired the content in the first place, provided I have both
of those rights.

Aereo doesn't need to claim ignorance because I have never broken the law. I
have the right to accept the OTA broadcast and to store, transmit, and view
personal copies of the broadcast.

~~~
alexqgb
Wait, do you not see the difference between a one-time transaction with a
third party that installs equipment they neither own nor operate and that has
nothing to do with content, and an ongoing service relationship with a company
that both owns and operates equipment that has everything to do with content?

Are you fucking serious?

"I don't see how the law can make a distinction based on how I acquired the
content in the first place, provided I have both of those rights."

In the case of Aero, you didn't acquire the content from the broadcaster. Aero
did. And Aero is not authorized to redistribute the content legally. The law
can distinguish between your paying them for content and you paying Apple as
easily as it can distinguish between an iPhone bought from directly Apple and
one bought from a mugger who stole it from someone on the subway.

Like you said, "I have the right to accept the OTA broadcast and to store,
transmit, and view personal copies of the broadcast."

Sure, but what you do NOT have the right to do is set up a commercial
operation that resells those "personal" copies to others, which is precisely
what Aero was doing. So yes, you can set up your own antenna and run it
yourself. What you cannot do is set up a business that sets up antennas and
runs them for other people.

~~~
MarkPNeyer
> an ongoing service relationship with a company that both owns and operates
> equipment that has everything to do with content?

does this mean i can pay a third party to install an anetenna in new york, but
i can't pay them maintain it for me?

~~~
baddox
I reckon you wouldn't be able to have your own antenna in your New York
apartment, unless you actually _own_ the apartment. Renters are out of luck.

~~~
alexqgb
They're only out of luck if the owner refuses to install an antenna. But
assuming that an antenna exists and that it sends connections to each
apartment, then they're back in luck.

If the owner amortizes the cost of this antenna as a general building expense,
and sets all the rents accordingly, there's still no problem. However, if the
owner attempts to charge a separate fee for that connection (or tries to raise
the rent for people who opt out of paying that fee) then he has not only
inserted himself in the middle of the content transmission stream, he has done
so on an individualized commercial basis. In effect, he's made himself a
micro-distributer by establishing a cash for content deal with his tenants and
the law has a major problem with that.

------
motbob
The decision is limited to the question of whether Aereo violated the
networks' "exclusive right" to "perform" their programs "publicly."

The dissent (Scalia, Alido, and Thomas) believe that Aereo did not "perform"
at all. They believe that when an Aereo subscriber logs in and clicks the play
button, that the subscriber, not Aereo, is doing that performing.

EDIT: Please note that the dissent would not have necessarily ruled that
Aereo's service was legal. The dissent merely believes that Aereo's service
complies with this one specific part of the Copyright Act. From the dissent:
"[Our] conclusion does not necessarily mean that Aereo's service complies with
the Copyright Act. Quite the contrary. The Networks' complaint alleges that
Aereo is directly _and_ secondarily liable for infringing their public
performance rights _and also_ their reproduction rights."

So this decision is designed to be as tight as possible. The Court is trying
to limit the effects of its decision by constraining it to this one claim by
the networks. From the language of the dissent, I have a hunch that even if
this one aspect of the case had been decided in Aereo's favor, that some other
aspect would have resulted in its service being declared illegal.

Scalia: "I share the Court's evident feeling that what Aereo is doing (or
enabling to be done) to the Networks' copyrighted programming ought not to be
allowed."

~~~
acjohnson55
I'm reading the opinion now, and I would not have guessed that those
particular justices would have made the ruling they did. Does anybody have
insight into how this decision fits with the ideological views of the
justices?

~~~
acheron
It's almost as if the justices are actual people with complex sets of
knowledge, opinions, and interpretations rather than just your stereotypes!

~~~
berberous
While I generally agree, this opinion split down ideological lines and it also
strikes me as curious.

~~~
dworin
Did it? The majority opinion was joined by 2 of the 5 conservative justices
and all of the liberal justices. Three conservative justices dissented based
on their reading of the law, which didn't seem particularly ideological.

------
mikeash
I imagine this is a minority opinion here, but I don't see a problem with this
decision.

Tech people like to treat laws as rigid rules that would be written in a
formally specified language if only legislators were capable of such a thing.
But they're not, and by design.

It doesn't make sense for a law to be written such that receiving on one
antenna and sending the result to your users is illegal, but receiving one an
antenna farm all located in the same spot and sending the result to your users
is legal.

Do we really want to live in a country where the obvious solution is illegal
but an insane workaround is legal? I don't want a precedent set where it
becomes standard for laws to be bypassed with expensive and technically
pointless workarounds. If we want to allow companies to receive TV broadcasts
and stream them over the internet, we should do so. If we don't, we shouldn't.
A situation where they're only allowed to do it if they have 10,000 separate
and unnecessary antennas is absurd.

Personally, I think it's ridiculous that a TV station can broadcast their
signal free of charge to anyone capable of receiving it, but if a company
wants to receive it and then pass it along to somebody, they have to pay a
fee. But the problem is with the ridiculous law, not with a completely
reasonable interpretation of it.

~~~
skottk
Your points about the way law works are exactly where technical people often
run into trouble when they reason about the law.

Given that the TV broadcasters are paying for the right to broadcast (often
gigantic amounts of money), I don't see a problem with preventing an Aereo
from free-riding on that privilege. YMMV.

~~~
mikeash
Why do they pay for the right to broadcast, though? Because they want people
to watch, right? Isn't receiving their signal and transmitting it to more
people who can watch it more easily and with higher quality doing them a
service?

If you look back before cable TV, broadcasters transmitted their signal and
the only people who could watch it were those with suitable equipment within
range. Broadcasters competed to get as many people as possible to watch. Each
new eyeball (preferably in pairs) meant additional revenue for them with no
additional cost.

Then comes cable TV. In addition to access to new channels, it also provides
the benefit of being able to watch regular broadcast channels even when you
couldn't receive them over the air. That means more viewers for the broadcast
stations, and thus more revenue. Why, then, should broadcast stations get
_paid_ for distributing their signal to more people, which is what they want
anyway?

It's clear to me that this is what the law says, and since the Supreme Court's
job is to interpret the law, it also seems clear enough to me that they made
the right decision here. But it doesn't seem like a very good law.

------
themgt
The really interesting question is the implications for future
precedent/innovations. The ruling says "But this difference [Aero's
technological setup] means nothing to the subscriber. It means nothing to the
broadcaster. We do not see how this single difference, invisible to subscriber
and broadcaster alike, could transform a system that is for all practical
purposes a traditional cable system into “a copy shop that provides its
patrons with a library card.” In other cases involving different kinds of
service or technology providers, a user’s involvement in the operation of the
provider’s equipment and selection of the content transmitted may well bear on
whether the provider performs within the meaning of the Act. But the many
similarities between Aereo and cable companies, considered in light of
Congress’ basic purposes in amending the Copyright Act, convince us that this
difference is not critical here."

What this seems to leave open is the question of whether a company that was
e.g. a generic cloud service with various features and functions, among them
the ability to rent a mini-antenna and stream recorded data from it to your
computer, would still be infringing. It suggests the infringement is largely
due to the way Aereo positioned and marketed itself to customers - the common
sense reality of the service overrode the technological loophole they
attempted to exploit.

~~~
rayiner
I find the use of "innovation" here irritating. There's nothing "innovative"
in 2014 about a service that streams TV over the internet. The only thing
"innovative" about Aereo is its legal strategy of exploiting a loophole in the
law.

~~~
bediger4000
"Exploiting a loophole in the law" \- does that phrase really mean anything?
Aereo did their system in a way that very carefully conformed to the law. The
bizarre system that resulted is a reflection of the contorted, illogical,
false-to-fact nature of copyright law, more than "exploiting a loophole".

The Supreme Court ruled wrong in this case.

~~~
rayiner
There's nothing "contorted" or "illogical" or "false-to-fact" about the
copyright law in this case. The studios spend a lot of money to make this
content. Users want to watch this content. To redistribute this content to
users, you have to pay money to the people who created it. There is a narrow
exception for free over the air TV. Aereo tried to shoehorn their internet
streaming service, which is functionally no different than something like
Hulu, into this narrow exception. The Supreme Court basically said: "if it
quacks like a duck it should be treated like a duck."

~~~
IanDrake
Hulu - watch any program any time.

Aereo - watch what's over the air right now.

Hulu - puts ads in the video

Aereo - shows the ads that are over the air.

Hulu - is like having everything on DVD

Aereo - is like having a 50 mile extension cord on my digital antenna.

I think the difference is striking.

~~~
bigtunacan
The problem is Aereo is charging for this service that circumvents the system
and pays nothing back to redistribute the content.

Contrast this with the lesser known, but competing service offered from
Syncbak.

Syncbak does the same thing as Aereo, but rather than circumventing the
existing networks and content providers; those are Syncbak's paying customer
base.

[http://www.syncbak.com/](http://www.syncbak.com/)

~~~
njharman
The advertisers already paid for content to be distributed. The broadcasters
aren't even missing out on theoretical revenue cause no subscriber pays for
over the air tv. If anything they could increase ad revenue claiming more
viewers.

I'm missing something... Cause I don't see why broadcasters are against Aero
at all. Is it cause cable companies pay broadcasters for content and people
think Areo will cut into that?

~~~
icebraining
You're missing that broadcasters transmit to a select geographical location,
so they can still sell the transmission to cable and satellite networks. By
making it cheaper to watch those channels outside of the areas covered by OTA
broadcasts, they're making it easier for current cable subscribers to "cut the
cord".

~~~
smurf_account
Aereo makes new users sign up with a credit card linked to a zip code within
the OTA broadcast range of the metros that they operate in. The users then get
the channels that are available in that area. See
[https://www.aereo.com/channels](https://www.aereo.com/channels)

Theoretically Aereo makes it more expensive to watch these channels(but easier
and more reliable) than a one time purchase of your own antenna.

~~~
icebraining
Prepaid CCs can often be linked to addresses you don't own.

------
selmnoo
I've mentioned this before on HN, I'll say it again: Aereo should now do a
pivot, becoming a hardware reseller of TV-signal-receiver/streamer devices
like this one:
[http://www.hauppauge.com/site/products/data_broadway.html](http://www.hauppauge.com/site/products/data_broadway.html)
\- it can stream either over your local Wi-fi, or across the interwebs so you
can watch remotely when you're out of the house. Broadband speeds are a bit
slow, but they're getting there (slowly) - until then, rely on your friend who
has Google fiber or something :). Basically you have Aereo service without the
service fees (except the initial hardware cost and internet service cost). I'm
especially in favour of this because it's putting back the power in the hands
of the end customer -- finally, they _own_ the device, they're not relying on
the cloud, they're not facilitating another rentier operation.

~~~
brucehart
Slingbox seems to have a strong position in this market. It's tougher to
stream video from a person's home than from a data center. Most homes with
broadband have limited upload speed that makes it difficult to stream good
quality video. I'm hoping newer compression algorithms such as HEVC will make
it possible to get decent quality even on connections with less than 1 Mbps
upload bandwidth.

~~~
avmich
You probably don't need to sell the equipment with the idea that it will be
installed in homes? Why not to keep person's equipment in data centers?

------
cheez0r
The Supreme Court is wrong- the reason cable companies are treated as a
'public' performance of a work is that their distribution medium is shared-
any subscriber can tune into that broadcasting of that work over a shared
common carrier where one copy of the work is transmitted and many subscribers
can view it. Aereo is different in that it only transmits the signal captured
to a single subscriber at a time, removing the 'public' nature of the
performance and hence invalidating their argument. How absurd.

~~~
untog
Aereo's setup is absurd. Placing hundreds if not thousands of identical
antennas on a rooftop, capturing identical signals and sending them,
individually, to users.

That's expensive and inefficient. The only reason they did it was to exploit a
potential loophole in the current law - and now the Supreme Court has
effectively closed that loophole.

~~~
pbreit
That's odd reasoning. It sounds like you are saying that any conformance to
the law is somehow exploiting a loophole.

~~~
untog
Not really. There's such a thing as the "spirit" of a law, and the technical
details of a law.

The intention of the changes to the Copyright Act (which Shivetya has detailed
better than I can[1]) was to stop basically what Aereo is doing, albeit back
in the 1970s with cable companies. The legalese reflected the technology of
the time. Aereo found a technical loophole that allowed them to continue to do
it, but all the while they were violating the spirit of the law.

Which is, of course, legal. Until it isn't.

[1]
[https://news.ycombinator.com/item?id=7944081](https://news.ycombinator.com/item?id=7944081)

~~~
pbreit
I don't think "technical loophole" is the best description. They were trying
to make the case that they were providing a long antenna cord which is at
least sorta reasonable (and something the cable companies could not claim).

Antennas are legal. Manipulating airwaves to be played on a TV is legal. Long
antenna cables are legal. Putting an antenna on my neighbor's roof is legal.
Paying my neighbor rent for such a thing is legal. Storing broadcast content
is legal. Paying for devices to do such a thing is legal.

~~~
Dylan16807
And breaking down a cable company in the same way works consistently too.
Antennas are legal, long cables are legal, paying your neighbor to set things
up is legal, sharing an antenna with your neighbor is not legal.

------
ISL
The majority opinion leaves open the possibility of bandpassing the antenna
signal and sending the (already compressed) digital TV signal across the
internet to to be decoded at the user's machine. It appears to be the
"performance" upon which the majority's opinion hangs; if the "performance"
happens in-app on the user's box, it's possible to evade this requirement.

On the one hand, I'd agree with Scalia that the "looks-like-cable-TV" standard
is a shaky one, at best. On the other hand, the court is saying "Look, we
agreed in the past, but Congress explicitly disagreed with us. Go fix
Congress, and we'll agree with you; we're not legislators."

------
johnpmayer
Seems like, because Aereo isn't just a hardware renter but also an integrated
SaaS provider, they were treated as such.

The court opinion talks in terms of user interaction with menus on the site to
select shows. We're kidding ourselves if this works anything like "hardware
rental". If it were, it would feel more like AWS.

~~~
the_ancient
I see so if you want to be "hardware rental" you have have a bad UI but if you
have a good ui you are then SaaS..

WTF

~~~
johnpmayer
It's not so much as quality of the UI but rather what the service actually is.
I can black-box Aereo and it looks pretty much like a rebroadcaster. Aereo
isn't renting me an antennae, not in the way AWS rents me a server.

~~~
davorak
> I can black-box Aereo and it looks pretty much like a rebroadcaster.

I can black box Aereo and it looks like a whole lot of manual work by me to
set up an antenna stream and time shift recordings etc.

------
pgrote
Justices Breyer, Roberts, Kennedy, Ginsburg, Sotomayor and Kagan were the
majority.

It isn't over since the case now goes back to the lower court, but Aereo can
no longer argue they are the same as a person putting an antenna on their
roof.

~~~
drzaiusapelord
Its amazing that the left and the right can't agree on anything, not even it
being illegal to lie on gun applications, but once IP is tossed in the game
they all fall on some pretty strong protectionist postions.

I'm not making some big statement here, but it just goes to show that guys
like Lawrence Lessig and the EFF keep losing because they have so few allies
in government and have the most powerful enemies, the various deep-pocketing
IP abusers like tech firms or Disney.

What now? Back to our DRM-laden lives with no silver lining I guess. Shame
that the profit on mass entertainment trumps all rights. I wonder if my
Slingbox is illegal now. Probably not, supposedly this decision is narrowly
written, which is a welcome change from the big sweeping conservative-led
majority decisions of late.

~~~
PaulHoule
Intellectual property law is the pride and joy of our legal system.

Really.

Patents, Copyright and Trademarks are all American inventions that have spread
everywhere in the world. Many Americans think it goes too far, but in the
fraternity of lawyers and judges, IP rules.

~~~
defen
Are you arguing that their current form was invented in America? Because the
English crown had patents and copyrights before the USA existed.

~~~
marcosdumay
In what concerns the rest of the world, it could as well be an all US
invention.

The UK made nothing to spread it, the US made sure it's more universaly
accepted than the Human Rights convention.

~~~
icebraining
Reading your post it almost seems like Berne is an US city.

 _The Berne Convention was developed at the instigation of Victor Hugo of the
Association Littéraire et Artistique Internationale. Thus it was influenced by
the French "right of the author" (droit d'auteur) (...) Before the Berne
Convention, national copyright laws usually only applied for works created
within each country. So for example a work published in United Kingdom by a
British national would be covered by copyright there, but could be copied and
sold by anyone in France. (...) The Berne Convention followed in the footsteps
of the Paris Convention for the Protection of Industrial Property of 1883,
which in the same way had created a framework for international integration of
the other types of intellectual property: patents, trademarks and industrial
designs._

[http://en.wikipedia.org/wiki/Berne_Convention](http://en.wikipedia.org/wiki/Berne_Convention)

------
dynofuz
This doesnt make sense. You are paying for renting the antenna. You're not
paying for the content.

~~~
emehrkay
How exactly does Aereo work? You rent an antenna from them, they record the
show for you, and you can play it back at a later time?

~~~
mason55
You can view OTA content live and record what you're watching just like a DVR.
They don't proactively record for you.

------
snowwrestler
I never liked the Rube-Goldbergian design of the Aereo system. It was clearly
more complex than necessary, for the sole reason to try to find and fit
through a loophole in the law.

To support that would set bad precedent, I think--both legally and
technologically. Even if you hate copyright, I'd argue that this ruling is
probably better in the long run because it clarifies the situation and the
fight.

From that perspective I think the decision is essentially correct, although
I'm sure it will be unpopular here.

However, I did read the syllabus, and there is some language in there
referencing viewer participation in a public performance, that seems
worrisome. But I'm not a lawyer, so I will be interested to see informed
discussion of whether the specific legislation and precedents were applied
correctly, and what implications were created by this decision.

~~~
bediger4000
One man's loophole in the law is another man's strict conformance to the law.
It looks to me like Aereo read the text of the law very carefully, and did
what they could to provide for a consumer demand.

The only problem is that Aereo didn't get enough money fast enough to "create
an ecosystem" or whatever the phrase is when you mean "monied interest not
afraid to lobby for their cause".

------
executor14
Scalia's dissent likens Aereo to a "photocopier or VCR." He says the court's
decision "will sow confusion for years to come."

More from Scalia's dissent: "The Court vows that its ruling will not affect
cloud-storage providers and cable-television systems, but it cannot deliver on
that promise given the imprecision of its result-driven rule."

------
Apoorv02
Aereo is not violating anything but they should have prepared for something
like this. Absurdity is common when you are trying to provide similar service
to the consumer in a better way without creating monopoly.

~~~
smeyer
>Aereo is not violating anything but they should have been prepared for
something like this.

In what other sense could they have been prepared? They fully expected to end
up in the courts, likely through the supreme court, and planned appropriately.
They lost the case, but it doesn't seem to be for lack of preparation.

~~~
Apoorv02
I was proposing for them to be prepared before it happened not for the trial.

~~~
smeyer
Sorry, I'm still confused what you mean by "be prepared before it happened".
Are you saying they should have pursued a different strategy/loophole around
copyright law? That they should have realized they had no chance and not
pursued funding? I'm not trying to be argumentative, I just genuinely don't
understand what preparation you're saying they should have taken.

For the record, I work at a company with a lot of former Navic Networks
employees (the company Chet Kanjoia founded before Aereo) so there's plenty of
talk about Aereo and I'm pretty familiar with their model.

~~~
Apoorv02
I can't imagine myself at their position so all I can give my honest opinion
not judgement. What I am saying is that they should have suspected that. It is
not my fully informed opinion and it can't be. And I can fully understand your
point too. That's pretty much it.

------
jedberg
I wonder if Aereo would be legal if they dropped the DVR portion of the
service. It seems like that is the issue here.

If it's really just me renting an antenna it seems like that is still legal.

~~~
skottk
Nope - it's the unlicensed transmission that this decision covers. The opinion
actually states that a cable company (with its licenses) would be able to
offer the DVR portion of the service. The DVR thing was covered in the Second
Circuit's Cartoon Network/Cablevision decision. It's what gave Aereo the idea
to try the many-antennas approach. The biggest difference is that Cablevision
has broadcast licenses.

~~~
jedberg
Got it, thanks for the clarification.

------
jrockway
This is a disaster for anyone that offers cloud services. It's legal for me to
set up an antenna in a data center and stream what I receive to myself. But
it's apparently not legal for me to pay someone to do the exact same thing.
What's funny is that if the antenna were connected to me via a coaxial cable,
it would probably be legal. But since it uses packets and Cat-6 cables and
that crazy Intarwebs thing, it's not. I don't get it.

This is annoying because it also obviously affects useful things like WebSDR.
Since WebSDR nodes can tune VHF/UHF, they can receive copyrighted TV and
music, which means they're now illegal to run under this ruling. (Fortunately,
all the good WebSDR nodes are outside the US, so it doesn't matter in
practice. But if you were going to set one up in the US, think again.)

------
taude
So in my area, I can't get over-the-air TV. I even put an antenna on my roof,
and it doesn't work. What's the governments responsibility for providing
public band tv stuff to me? Seems like I'm forced to buy into the cable cabal?

------
pontifier
I'm constantly amazed by the way the supreme court carves a razor sharp line
through the issues. They always seem to examine these complex issues with the
clarity they deserve. That's their job, but these are some fantastic and
intelligent individuals, and are the only people in government, especially the
justice system, that I have complete confidence in.

I truly wish I could have more confidence in other parts of government,
especially lower court judges, and the police.

~~~
allworknoplay
You're so right in theory, except that they're almost always split along
idealogical lines -- individual justices strongly adhere to a single political
ideology, AND justices with similar ideologies almost always stick together.

That implies, sadly, that instead of clear first-principles rulings they're
really just interpreting the law to suit their beliefs.

The split has been studied endlessly and it's real; they rule politically
rather than rationally. Just one example of coverage:
[http://www.theatlantic.com/politics/archive/2012/06/the-
incr...](http://www.theatlantic.com/politics/archive/2012/06/the-incredible-
polarization-and-politicization-of-the-supreme-court/259155/)

~~~
acheron
_that they 're almost always split along idealogical lines_

Except not. Stereotypical 5-4 decisions are down, unanimous decisions are up.
Overall the justices are agreeing with each other more than ever.
[http://www.washingtonpost.com/news/volokh-
conspiracy/wp/2014...](http://www.washingtonpost.com/news/volokh-
conspiracy/wp/2014/06/25/despite-hard-cases-supreme-court-displays-remarkable-
degree-of-unanimity/)

------
mckoss
The dissenting opinion is based on a theory that Aero did not make a choice in
what they were rebroadcasting. I disagree as they carefully selected the
geographic region for their antennas based on their belief in the market
demand for (copyrighted) shows in that region. They also carefully adjusted
their equipment to be tied to the specific frequencies of broadcasters. They
knew and promoted precisely what content viewers would watch.

------
dguaraglia
What bothers me about this is how quickly decisions are made when it comes to
content and copyright.

Average Joe doesn't give a flying f* about his privacy, the loss of life in
war, the obscene spending on failed military projects, the lack of social
programs, the millions stuck with ridiculous student debt...

But hey, touch their right to watch Netflix or some local station from NYC
from their house in California and SHIT GETS REAL!

Tsk tsk...

------
jervisfm
Here's a (naive) question: In the US, is a Supreme Court ruling completely
final ? What options, if any, are available to the losing party ? Is change
through congress the only way to try to appeal rulings?

If there are no practical ways to repeal Supreme Court rulings, what happens
when the Supreme Court makes a mistaken ruling?

~~~
djflutt3rshy
Yes, it's very strong legally. Congress or the states can try for a
Constitutional Amendment (but those are few and far between, last one was in
1992), or the Supreme Court can later reverse itself partially or in full. An
example of that would be Plessy v Ferguson in 1896, where the Supreme Court
ruled segregation laws were constitutional, but later in the 50's (Brown v.
Board of Education) they reversed it.

~~~
npizzolato
Those are the only options if they're ruling on the constitutionality of a
certain law. If they're just deciding on whether or not an action violated any
given law (as in this case), you could reverse the ruling by changing the law
itself (i.e. through Congress).

------
jusben1369
I think this is a good read as it relates to the broader implications of this
decision;

[http://www.vox.com/2014/6/25/5841820/the-supreme-courts-
aere...](http://www.vox.com/2014/6/25/5841820/the-supreme-courts-aereo-
decision-could-endanger-cloud-storage)

------
rglover
Not surprised. The service works by rebroadcasting over the air signals and
then charging for them, right?

~~~
djb_hackernews
I've not used Aero and haven't heard their argument but I bet their business
model is they rent antennas to customers. I'd be curious to know where that
argument failed because surely I could create a business that rented antennas
to customers and installed them on houses. Why does it matter the location of
the antenna?

Either way this is bad for the consumer, bad for technology, and bad for
innovation.

~~~
mikeash
I imagine the argument fails because it's obvious to anyone who looks at the
company's offerings for two seconds that the "rent antennas" thing is just an
excuse, and that their actual business model is that they charge for streaming
TV.

~~~
djb_hackernews
So then where is the line drawn? Am I not allowed to put an antenna on my
roof? What if I put it on my neighbors because it gets a better signal?

I'm honestly curious what is wrong with renting an antenna from a company and
streaming the signal, regardless of location.

~~~
vibrolax
You are allowed to put an antenna on your roof. If your neighbor allows you
to, you can put the antenna on his roof. You can even rent the antenna. You
are executing a private performance. You cannot subscribe to a streaming
service that "rents you an antenna" unless the service licenses retransmission
of the broadcaster's content.

~~~
kd0amg
What is it about GP's scenario that makes it a private performance? It sure
looks like he's "subscribing to a streaming service that 'rents [him] an
antenna'".

~~~
vibrolax
I hope I understand your question.

I think the court has found that the "distribution for pay", i.e. "Cable TV"
aspects of aereo's service outweighs the "antenna rental" aspects, and that
makes it charging for a public performance.

If you rent an antenna on top of the Empire State Building, digitize the
signal, and set up your own means to stream it over the internet to your house
in Peoria, that is probably a private performance. If you effectively sell
someone access to the stream (like a Cable TV company), that is a public
performance.

~~~
kd0amg
The part I'm confused about is the distinction between what the Empire State
Building management is doing in this setup and selling someone access.

~~~
vibrolax
The SC ruled that the number of antennas or where they're located is not the
heart of the issue. Aereo effectively supplied a data stream with broadcast
content to subscribers (just like a cable tv company) without licensing the
right to supply that content. The issue is commercial rights, not
technological means. If you personally lease space for an antenna, and
engineer a means to get it to your TV to watch, that's ok. If you sell access
to the content stream, you are a cable TV company and have to pay
redistribution license for the content.

~~~
kd0amg
_Aereo effectively supplied a data stream with broadcast content to
subscribers (just like a cable tv company) without licensing the right to
supply that content._

This is also what ESB would be doing by letting people rent antennas and
streaming servers.

~~~
mikeash
ESB would be renting antennas, and then what you do with them is your own
business.

Aereo is selling streaming TV service that just happens to use antennas in the
backend.

You might say, it's all the same in the end from a technical point of view.
And you're right, but the law doesn't care about the technical point of view.
From the legal point of view, Aereo is selling TV streaming, and must comply
with laws for TV streaming.

~~~
kd0amg
Ok, so if Aereo didn't have "TV service" all over it's marketing literature,
they'd probably be in the clear?

~~~
mikeash
I think the service itself would need to be changed as well. I think if they
explicitly rented antennas and that was reflected in both their marketing and
their actual service (e.g. providing a raw bitstream for a user-selected
frequency rather than providing a video stream for a user-selected TV channel)
then they'd be alright. This is just what I've been able to understand of the
situation and I'm not an expert and could be terribly, terribly wrong, of
course.

------
ashmud
Bit of an "edit war" on their wikipedia page over declaring them defunct
already.
[https://en.wikipedia.org/w/index.php?title=Aereo&action=hist...](https://en.wikipedia.org/w/index.php?title=Aereo&action=history)

------
pdq
Scalia, Thomas, and Alito wrote their dissenting opinion, starting on page 23.

------
kdot
I would love for Aereo to open source the technology, sell me an antenna so
that I can run my own Aereo service and stream TV to myself.

~~~
vibrolax
You don't need anything from Aereo's stack to do this. Get a device such as a
Silicon Dust HDHomerun.
[http://www.silicondust.com/products/hdhomerun/hdhomerun-
dual...](http://www.silicondust.com/products/hdhomerun/hdhomerun-dual/) This
box is 1 antenna in, 2 ATSC tuners, 1 ethernet out. If you want to stream on
your LAN, there are clients for Windows and Linux. XBMC supports it. I can't
see why you couldn't serve it over the internet as well.

------
sschueller
Does that mean good bye Aereo? Didn't they say they would shut down their
service if they loose?

~~~
veritas20
Yes, they've stated that they have no Plan B. I would have to disagree with
them though. There are always options. The ruling essentially invalidated the
live stream portion of their service. I believe that there is still a huge
market for cloud DVR. I rarely watch live TV these days, and if I do it's
because there was no other option.

------
mp99e99
very sad day for consumers and tech, lots of possible business models broken.

~~~
Goronmon
_very sad day for consumers and tech, lots of possible business models
broken._

I'm not seeing it. The decision seems to specifically covering only the
business model used by Aereo. That is, charging users for a service that
retransmits television content without a license to do so.

What other business models are you talking about?

------
euroclydon
I haven't given Aereo much thought, but it seems like, if I could rent a VPS
in Miami, I could watch Miami Dolphins games online for the cost of Aereo plus
the VPS. That would be like $30/mo for 5 months. $150 total -- much cheaper
than the NFL Sunday Ticket.

That alone is a big loophole!!!

~~~
bmelton
I'm pretty sure they at least attempt to limit your antenna to one in a nearby
area to you, though I'm not a customer, so I can't say how effectively they
disallow it.

That said, I'm apparently in a suburb of Baltimore, and when I visit the aerio
site, I only see access to Baltimore services... suggesting that I'd have a
hard, if not impossible time getting an antenna in Miami.

~~~
euroclydon
That's why I mentioned the VPS. A quick search for "Miami VPS" reveals $20
options which would do the trick.

[http://www.hostvirtual.com/datacenters/miami](http://www.hostvirtual.com/datacenters/miami)

------
evandena
So how does this ruling not affect the cloud storage providers?

~~~
skottk
Because it's not about "the cloud" in general. It's about specifically the
rebroadcast of television radio signals, concerning which there's a
substantial body of law created to govern the activities of cable TV
providers.

In other words, the SC just defined Aereo as a cable company, when they wanted
to be a cloud services company.

~~~
evandena
Thanks

------
cowardlydragon
No way, a decision from the Supremes that favors entrenched corporate
interests?

At least this time it isn't such a direct attack on the "common people"

------
muyuu
Down. Any mirrors?

~~~
ruytlm
There's also a Scribd mirror up: [http://www.scribd.com/doc/231280851/ABC-v-
Aereo-Decision](http://www.scribd.com/doc/231280851/ABC-v-Aereo-Decision)

~~~
muyuu
Cheers.

------
notastartup
Are there any other services like Aereo out there?

What was the key deciding factor that they broke the law?

What will happen now to Aereo's investors money? Will it be used to pay a
large copyright royalty fee? Can it pivot? I think the latter is unlikely
seeing they had no other plans, they bet the horse.

Reading this article back in March, I would've been freaked if I was an
investor.

[http://webcache.googleusercontent.com/search?q=cache:_Co4SqI...](http://webcache.googleusercontent.com/search?q=cache:_Co4SqIKy30J:www.businessinsider.com/aereo-
doesnt-have-a-plan-b-2014-3+&cd=5&hl=en&ct=clnk&gl=ca)

    
    
        “No. There is no plan. We believe in our merit and we do
        think it’s the right thing. Progress is important. The 
        mission of this company was to try to create an open 
        platform, to try to wedge the system open a little bit.
        And if we don’t succeed in that despite our best 
        efforts, good law on our side, and the merits of our 
        case, it will be a tragedy but it is what it is.”
    

Aereo CEO

------
electronous
This is precisely why old people shouldn't be anywhere near tech.

~~~
smackfu
They wrote 18 pages explaining their reasoning complete with citations, and
that's your rebuttal?

------
cm-t
HN/reddit ddos'ed ?

~~~
smackfu
Really? I've never had problems getting to the SCOTUS opinion PDFs, and that's
pretty impressive since the traffic must be intense right after a ruling is
released. And it would be difficult to use a CDN because the decisions CANNOT
be released early.

------
Glyptodon
If aliens have a TV channel does that make SETI@home illegal?

