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Supreme court: Aereo is violating copyright law [pdf] (supremecourt.gov)
301 points by acjohnson55 1303 days ago | hide | past | web | favorite | 386 comments

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.

For once I agree with Tony Scalia (a rare event indeed!). The question before the Court was not whether Aereo should be permitted to keep operating, but simply whether a preliminary injunction should be granted against it on the grounds of direct infringement of reproduction rights. A decision in the negative would have returned the case to the lower courts for litigation of the remaining questions; it wouldn't have put Aereo in the clear.

And I think Scalia is right that Aereo does not commit a volitional act when one of their subscribers plays back a recorded show. By not committing a volitional act, they cannot be guilty of direct infringement.

I personally also think that the resulting performance is, crucially, not public. (Scalia explicitly does not address this question.) But this argument appears unlikely to prevail in the end.

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].

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.

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.

> 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?

I'd highly recommend reading the ruling. It's a good read and the points are made more eloquently than I can put them. I'm not speaking as to whether or not the law is a good law, but this interpretation of the law seems pretty solid. Your hypothetical Dropbox scenario is actually addressed at the bottom of page 16, but you need context from earlier parts of the ruling to understand the "public" argument.

It's not really worth me repeating the argument here, as it would take 16 pages to do, and the Supreme Court has already done the work. After reading it I'd love to see your arguments with specific parts of the text.

My main beef is I feel they're stretching pretty far to claim the transmission requested by an individual from a private antenna to that individual is actually to the public. The argument I'm objecting to is around Section 3, page 12-14 or so. The transmissions were each individually requested by each user, and chosen to watch at unique times and durations by each user. That, to me, is sufficient to mark each transmission as private. None of the transmissions are identical or sent to anyone who did not explicitly request them, unlike the CATV operators they continually draw comparisons to. There is no part of that process that I think can reasonably be called a public transmission.

Page 16 does address the Dropbox scenario, but I don't think it provides a clear line, which makes this a pretty crappy opinion, in my opinion. As they say on page 16, the cloud operators could try to slip through the holes in their definitions of "perform" and "the public", but I don't really see the distinction. I, the user, used my legal right to place copyrighted work on the remote service, and I chose to play it back some time later. That sentence applies both to Aereo and to Dropbox, and I think this decision would make the Dropbox scenario illegal.

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.

> 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.

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.

> 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?

I don't see how that difference is at all relevant to the analogy. Is it just because one involves repeated payments? Would it be legal for Aereo to charge a one-time fee instead of a subscription service? Or is the problem that Aereo owns the property where the physical antenna resides? Does my personal antenna+streamer have to reside on property which I own directly? What if I rent my apartment? Heck, my Internet connection is a subscription service, and I neither own nor operate any of the Internet equipment myself.

>Is it just because one involves repeated payments?

No, it's illegal because it involves reselling streamed or broadcast content (as opposed to content on physical media which can be resold under the doctrine of first sale) which is illegal regardless of whether it's done for one-time or ongoing payment. Commercial re-transmission is the real bone of contention.

>Would it be legal for Aereo to charge a one-time fee instead of a subscription service? Or is the problem that Aereo owns the property where the physical antenna resides? Does my personal antenna+streamer have to reside on property which I own directly?

Probably irrelevant, since they're still running a commercial service. That means the signal in question is not being pulled down by a private individual for personal, non-commercial use. It's being pulled down by a commercial company for the benefit of its customers. That puts it on the wrong side of the law.

Of course, if Aero were set up as a co-op, and its customers were owners of not just the antennas but the building etc. and were mutually responsible for the electricity and so on, then perhaps it could get around the law. But that's purely hypothetical, where as the Supreme Court was ruling on the (very different) reality.

>What if I rent my apartment? Heck, my Internet connection is a subscription service, and I neither own nor operate any of the Internet equipment myself.

If you rent your apartment from a landlord who charges you an additional fee for access to the wire running from the building's rooftop antenna to your flat, then the landlord is the one on the wrong side of the law.

As far as your ISP is concerned, they are treated by law (as far as content goes) in the same way that the telephone companies are treated. That is to say, they cannot be held partially responsible for any infringing uses you may use of their service, in the same way that the phone company can't also be charged with conspiracy when two gangsters use their system to plot a crime.

In terms of the internet, this comes from the Safe Harbor provision of the Digital Millennium Copyright Act (DMCA, 1998. In determining whether a network operator is partially responsible for infringing uses, the critical test is the source of the content. If they were the ones who put it on the network, they they can be held liable. But if (as in the case of YouTube or Dropbox) they're simply the hosts for material that others upload at their discretion, they are protected from liability. There's major caveat in that they must pull the content down if the owner of the content notifies them that its presence on the network is infringing. If they fail or refuse to honor a take down request, then they lose their legal immunity.

Aero is not protected by Safe Harbor since they're the ones who introduce the content to their network when they initially pull it off the air. Again, if they were run as a co-op (meaning there was no legal difference between the owners of the equipment and its end users) the case may have gone differently. But as they are an unprotected third party placing themselves in the middle of a legally protected broadcast transmission, and doing so on a commercial basis, they're doing so in violation of the law.

> 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?

No need to be rude. Given that nothing illegal occurs throughout the entire process, no, I don't really see a difference between who provides the service.

> 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.

I see you aren't familiar with Cablevision. Yes, they are authorized to redistribute the content. Cablevision explicitly made remote DVR services legal.

> as easily as [the law] can distinguish between an iPhone bought from Apple and one bought from a mugger who stole it on the subway.

My, what a poor analogy! In that case the mugger had no legal right to acquire that phone. I, however, do have a legal right to acquire OTA broadcasts.

"No need to be rude."

Sorry, but I take offense at arguments that are stupid or dishonest. The Geek Squad analogy is not even remotely applicable since nothing owned or operated by the Geek Squad touches the content stream. Given that the content stream is the bone of contention, comparing them to Aero is - at best - stupid, and at worst, diversionary, which smacks of dishonestly.

And since we're on the subject, there was also an element of dishonesty in the way you tried to defend your Dropbox analogy. Initially, when you were wondering about what differentiates DB from Aero, you were talking about the companies. The explanation that one company qualified for the DMCA's Safe Harbor protections while the other didn't demolished your position. But you didn't concede - or even acknowledge - the point. Instead, you tried to continue the argument by quietly shifting the subject from the companies to the content, which is a separate matter entirely. This kind of rhetorical shell game is a weasel move, and is not something you see from people who argue in good faith.

And so you know, it was the pattern of dishonesty - and not a single incident - that raised my ire. If you can't support your point without resorting to bullshit, it's probably because the point you're trying to make is a bad one. Honest people stop there. Bullshitters press ahead, typically by employing the shell-game tactics you just used here.

For more on that subject, see Harry Frankfurt, who notes that liars - bad as they are - still respect the authority of the truth if only to do a better job manipulating it to their own ends. Bullshitters simply don't care. For this reason, they're a greater enemy of the truth than liars.


Moving on, I am "familiar" with Cablevision. They're a cable company that does business with content providers. Consolidating remote DVRs under a single roof is not a problem for content providers as long as payments from Cablevision remain uninterrupted per the terms of the contracts that Cablevision signs. Indeed, if their remote DVR system increases paid and advertiser-auditable audience reach, it can work out well for everybody. Because of this positive business relationship, Cablevision is authorized to redistribute the content that Cablevision redistributes in the way that they redistribute it.

If Aero wants to redistribute content in a similar fashion, it needs its own contracts with providers. It can no more piggyback on Cablevision's contracts for content than you can park your car in a private spot reserved for - and paid for - a complete stranger.

That's the issue here. It's not about your right to pull down OTA content. It's about your desire to pay a third party to do that on your behalf. Specifically, it's about the right of that third-party to offer that service on a large-scale, commercial basis in the first place. This is what's known in terms of copyright law as "substantially infringing."

> Sorry, but I take offense at arguments that are stupid or dishonest.

Having read the conversation it looks more like talking past each other and failing to get to the core issue then stupid or dishonest arguments on either side.

'It's not about your right to pull down OTA content.'

yes, it absolutely is - the two issues are inherently coupled.

No it's not and no they aren't.

You are not Aereo and Aereo is not you. That's the point. You can pull down content for your personal, non-commercial use, and Aereo can pull down content for its personal, non-commercial use, but the moment either of you pull it down then transfer it to the other - especially on a commercial basis - then you've run afoul of the laws prohibiting retransmission.


> then you've run afoul of the laws prohibiting retransmission.

That is what result of the Aero court case says but the legal standing was not so clear with out this court case. Otherwise it probably would not have made it to the Supreme Court nor cause so much discussion on Hacker News.

Really it seems most people who disagree with with the court case are looking for why is this ruling is fair or why did those who originally make the law think it was fair(is is still fair?) or does this make society better?

Putting aside the smoke and mirrors of the "individual antennas" for just a moment, the basic issue is unavoidably clear.

(1) These were retransmissions. (2) They were commercial. (3) That is illegal.

If Aereo was run as a co-op, and subscribers were also the owners of the facility and the employers of its operators, then a plausible argument could be made that the people pulling down the signals and the the people ultimately receiving them were one and the same. Accordingly, they'd be free to do what they liked without getting permission from - or paying money to - the broadcasters.

This arrangement would be substantially different from the original cable retransmission case, where the Supreme Court ruled against a model where the owner / operator of the antenna and backend delivery was distinct from (and sending bills to) the audience.

It would be more like the owners of a Manhattan co-op putting a single antenna on the roof of their building (key word: their) and running multiple wires into their individual units.

But while this far more defensible co-op structure may frustrate the broadcaster's lawyers, it would also frustrate (a) the venture funds backing the set up and (b) the banks angling to produce a liquidity event via a major sale or an IPO since legal immunity would be tied to the non-transferability of ownership from audience members to unrelated third parties.

That's what did Aereo in: they tried to have their cake ("See? Individual antennas! It's personal, non-commercial use!") and eat it ("Hey investors! Would you like violate both the personal and non-commercial shields that protect this operation by purchasing a stake in somebody else's stream?").

I don't know why the lower court couldn't see through this malarky, but I'm glad the Supreme Court did.

> 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?

Define "maintain". If you mean "pay the guy who installed it to keep it in good working order", there's no problem. But if you mean "pay the guy who installed it to record everything that comes off the antenna then set up a commercial service to redistribute that content anywhere in the world to a device of your choosing" then it's a probably illegal. On an individual basis it's also pretty inconsequential, so as a practical matter, it's not a concern.

But if you were the owner of a big enough building and were also charging people for the wire service to their apartments - and beyond - it gets more problematic. Indeed, a variation on this is what the Supreme Court ruled against decades ago. And if you do this on a truly industrial-sized basis (as Aero did) then expect the hammer to drop.

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.

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.

Your argument doesn't work for the analogy, because the viewer is simply paying someone to do the physical work required for the viewer to remotely watch his own stream from his own antenna. It's like the difference between setting up a cable card and Internet stream server yourself, and hiring a tech guy to come to your house and set it up for you.

The critical difference with Aero is that it's never your antenna. It's leased, not owned, and moreover, Aero treats the antennas themselves on a fungible basis, meaning that they they simply maintain a 1:1 relationship between the number of antennas and the number of subscribers, so you're not even leasing any specific piece of equipment. You're just buying individual access to an independently owned and operated antenna array.

That's miles away from "just hiring a tech guy to come over and set up your cable card".

> they simply maintain a 1:1 relationship between the number of antennas and the number of subscribers,

That is not my understanding. Bob and George could have both leased Aero antenna in the same area. Bob's could get good rescission and George's could get bad reception impacting making George's experience worse. Or so says the public statements of Aero.

> You're just buying individual access to an independently owned and operated antenna array.

Is there evidence of this that contradicts Aero's public statements?

Here's how the arrangement was described last year in a Gigaom article.

"the antennas are “multitenant” which means that, when one Aereo subscriber is not using an antenna at a given time, it is available to all other subscribers."


So no, it's not "your" antenna any more than a weekend rental from Hertz is "your" car. Moreover, the antenna is only part of the package. The real lyncpin making the system work is - or was - Aero's proprietary transcoding setup and the equipment that handles the feed coming off the antenna, and that is definitely not run on a 1:1 basis.

I mean, the whole idea that this is a bunch of individually "leased" equipment packages that just happen to be co-located in the same facility without any meaningful overlap between each person's personal, individual feed ("just like me putting my antenna on someone else's roof!") is such complete and utter bullshit.

Thank you for the link. One subscriber uses one antenna at a time. That is how I thought it worked.

When you said that "You're just buying individual access to an independently owned and operated antenna array." I thought you meant that all subscribers where sharing access to the to the array.

Time share rentals exist so it makes sense you could do it with antenna as well.

> Aero's proprietary transcoding setup and the equipment that handles the feed coming off the antenna, and that is definitely not run on a 1:1 basis.

Is there evidence they are mixing signals from different antenna to improve signal quality. I thought I had read quotes from the CEO saying with pride this was not the case.

It's not that they're mixing signals from multiple antennas, it's that they're running all the signals through the same transcoding system before delivering them, which breaks any concept of individual streams from reception to audience.

Also, there's an important difference between a time-share rental (which has a single owner doing business with a number of clients) and a time-share co-op, in which use of the property is a function of direct, if partial ownership.

If you own the antenna - even in part - you can justifiably claim that your use is personal and non-commercial. However you cannot resell the material to others. And if you don't own the antenna - and are buying access to the material from someone who does - then you're not getting it from an authorized source.

Individual antennas was clever, but not clever enough. Individually owned antennas (as part of a audience-owned operation) would be more defensible. But then the investment opportunity would evaporate.

Mathematical induction does not apply to the law. Just because a single instance of an activity is legal does not necessarily mean that N instances of the same activity are legal. This is exactly the distinction between "private" performances, which are fair use, and "public" ones, which aren't.

> Just because a single instance of an activity is legal does not necessarily mean that N instances of the same activity are legal.

One person does something it is legal, but if N people do it it is illegal? I do not think that is what you are trying to say, but I can not isolate what you are trying to say.

Actually that's exactly what I'm saying. And there are lots of examples where an activity is only illegal if N>>1. Unlawful assembly, for example.

> And there are lots of examples where an activity is only illegal if N>>1. Unlawful assembly, for example.

Unlawful assembly, at least as it usually is defined in the US state laws (the British form has been expressly repealed for decades, and so isn't an offense in any case) requires not only a purpose of disturbing the peace but the completion of some offense, and so would be illegal in the N=1 case as well, not only in the N>>1 (or even just N>1) case.

So, while there may be a good point here, that's not a good example at all.

> Unlawful assembly, for example.

I thought about that example specifically and it does not seem to fit.

Normally the problem with too many people assembling is that they they block businesses, road ways, etc. In this case each person is not doing the same thing as when N=1. Some N+1 person comes along and decides that it is ok to block a door way or a road, or can not tell that their addition adds to an egress problem if there is a fire. In the example of unlawful assembly of N>>! people are not taking the same actions as when N=1.

Good grief. OK, here are some more examples:

1. Marrying one person is legal. Marrying >1 person is not.

2. An S corporation can have at most 100 share holders.

3. Zoning limits on the number of people that may occupy a structure are common.

None of this examples seem to fit your original statement:

> Just because a single instance of an activity is legal does not necessarily mean that N instances of the same activity are legal.

> 1. Marrying > 1 person

Is not n instances of marriage under the same conditions. It seems like to fit your original statement it would have to be that one couple marrying was legal while N couples marrying was illegal.

> 2. An S corporation can have at most 100 share holders.

The number of people is changing but it is only one instance of forming a S corporation not N instances of forming an S corporation.

> Zoning limits on the number of people that may occupy a structure are common.

The N+1 person moving in is not really doing the same things as the first person moving in similarly to the unlawful assembly.

It would be interesting to look at laws implement actions which are legal with 1 instance but illegal with N, but the example you have quoted so far to do seem to have any carry over to the Aero case.

> Has Dropbox just committed copyright violation?

That depends on how big of a threat Dropbox is deemed to be by major lobbies for content creators or distribution channels. Trying to apply any sort of unbiased reasoning to IP laws is futile. The rulings will be in favor of the most powerful and interested lobby.

If you hired Aereo and paid all costs for them to do this for you and you alone, it would be at least a grey area.

The reality is that Aereo built the system using their own capital and offered the service for a fee to any member of the public. The business model is no different from a cable company or satellite TV company.

In the case of DropBox, you stipulate that you have the legal right to view the file, so that answers the question.

> In the case of DropBox, you stipulate that you have the legal right to view the file, so that answers the question.

I have the legal right to accept OTA broadcasts in New York. I also have the right to store personal copies for time shifting (see Cablevision). It is exactly an analogous situation to using Dropbox to store copyrighted material solely for your own use.

You have a file with rights to use it. You upload the file to DropBox; then you download the file from DropBox. At all points along the way you have rights to the file.

Aereo has the right to view and time shift NY OTA content for their own use. But they upload their file to their system for your use. In doing so, they are attempting to transfer viewing and time-shifting rights from them to you.

This is not exactly the Court's reasoning, but it examines the differences in the context of file rights.

> Aereo has the right to view and time shift NY OTA content for their own use. But they upload their file to their system for your use. In doing so, they are attempting to transfer viewing and time-shifting rights from them to you.

Practically what changes though if I have to log into a server and push a button or two to explicitly start an upload from the antenna to my storage space? How much work do I have to do manually before it becomes legal? What about me doing it manually makes it legal, fair, or better for society.

As an end user you are allowed certain rights like fair use, viewing OTA broadcasts for free, time shifting content, etc. Your rights extend to cover the property you own.

The concept of property ownership is potent in legal reasoning. If you do things with an antenna and DVR that you own, then you are the legal entity doing those things.

If you pay a fee to a company to do those things, then both you and the company are doing those things. The legal status of the company is a service provider, which is different from an individual end user. Aereo was a service provider, but tried to assert that they were merely an extension of each subscriber's personal property. The Supreme Court said no to that interpretation.

As for society, a legal system that provides revenue opportunities for creative works encourages the flow of capital to invest in those creative works. LOST or Breaking Bad would not be possible if the companies producing them did not have some way of making money to pay back their investors.

What about companies that use their own capital to manufacture antennas? What about Internet service itself, which is operated by a third party and paid for on a subscription model?

Aereo now sells me the antenna for $100. They charge me a "colocation" fee. Aereo is now following the law according to this decision. They still don't need to pay broadcasters.

It was an incredibly stupid decision.

I could offer the exact same service. I will point you to a ~$160 hardware device that I will colocate in a datacenter in Chicago for you for $15/month. I'll provide power, networking, and unlimited bandwidth. How is this any different?

Continued from my above post:

If you'd be interested in this sort of setup, I would be curious (my details in my profile). I'm already waist deep in several other projects, but I'd love to gauge the response. I already have datacenter space; I could be providing service to 80-100 people in two weeks with my current resources (i.e. Chicago-based datacenter space).

Not looking to compete with Aereo; definitely looking to disrupt protectionist copyright rulings.

> How is this any different?

People will pay more for it, so Aereo will charge what they know they can

What is a semantic difference between setting your own antenna and someone setting it for you and charging for the service? I.e. the service of renting of that antenna? Why the second is suddenly considered bad by the law?

I'm not arguing about whether the law applies, I'm asking to explain the logic of the law which intents to forbid such service.

The logic of the ruling is that Aereo, if you looked at it as a black box, was essentially acting as a cable company. The internal workings of its technology aren't as important as the actual functionality being provided.

If you draw a black box around an antenna salesman and the equipment they've installed, you also get something that appears to be a cable company.

I think there's a big different between paying money all at once to buy and install hardware that I own vs paying a recurring fee for a service.

Are you suggesting that it should be illegal to rent an antenna via a recurring fee?

If it's bundled with a service that streams over the air broadcasts via the internet to wherever you happen to be, then yes.

So it would be ok to by the equipment, then occasionally pay for repair when it breaks? What is the dividing line that would make buying and paying for repairs ok, but not renting?

"bundled with a service that streams over the air broadcasts via the internet to wherever you happen to be"

The equipment I talked about above includes a server which can be used by the renter to server the signal from the antenna to themselves.

So an end user could log on to their server tap into their antenna and watch whatever the antenna was picking up. They could install dvr software to their server if they needed to record shows and play it back latter.

What if I paid for the antenna with a credit card, and am slowly making payments month by month? What if I rent the apartment where the antenna resides, and pay a monthly subscription for Internet?

Are either one of those you paying a recurring fee to a company for a service that streams TV to you?


Then you're fine.

The mechanism is exactly the same.

Doesn't matter. I know you don't like that but that's the way it is. Common law isn't source code running on a machine with perfectly defined rules, it's a set of values adjudicated by judges.

They looked at Aereo and said: It looks like a cable company and quacks like a cable company so it's gotta act like a cable company. The precise configuration of equipment they have in their datacenter doesn't matter.

I'm not arguing that the law is the way I think it should be. I'm just arguing that the law is really dumb, and that it's pretty clear the legal system just makes decisions that serve the interests of powerful lobbies, rather than some intelligent or even discernible set of rules or principles.

I understand that you think it's really dumb but I think most people would disagree with you. When you get bogged down in the technical details of Aereo's datacenter configuration you miss the forrest for the trees. They're a company that streams TV into people's homes. Other companies (the cable companies) have to pay a fee to the content creators to do that. Why should it be different for Aereo?

It costs a lot of money to make American Idol and CSI and to license the rights to the Super Bowl. The people that own that content should have a right to license it out in whatever manner they choose.

> They're a company that streams TV into people's homes. Other companies (the cable companies) have to pay a fee to the content creators to do that. Why should it be different for Aereo?

The fee was already paid then that party decided to stream it over the air. If the content creator does not want that they they do not have to allow for that usage. Or charge more for it.

That is wrong. The law specifically says that cable companies cannot transmit TV that is broadcast over the air unless they pay rebroadcasting fees.

> That is wrong.

I was proposing an alternate solution that looks equally viable under the law(not considering the recent supreme court ruling of course). It also seems more reasonable/fair then the Supreme Court ruling in question. If you thought my stated idea less fair then the supreme court ruling I hoped you would say why and provide evidence.

I was not trying to inform you about current laws.

>The law specifically says that cable companies cannot transmit TV that is broadcast over the air unless they pay rebroadcasting fees.

If that was obvious to everyone that Aero fell under these restrictions then I do not think the case would have made it to the supreme court or be a topic that would attract much conversation on Hacker News.

Why is such streaming a "public performance" really? Aereo rents one antenna per user. Or public is now redefined?

> Or public is now redefined?

Providing a service to the public vs. doing something privately, in law, is generally about doing the service commercially via an arms-length transaction in the general marketplace, not about the ratio of inputs to outputs. So, its not "redefinition" at all.

So, as others pointed out, renting an antenna should be violating the public performance restriction. Or renting a house with antenna for example, since it's commercial activity. It doesn't make sense though.

> So, as others pointed out, renting an antenna should be violating the public performance restriction. Or renting a house with antenna for example, since it's commercial activity.

Offering antennas or houses for rent may be a service to the public, but if you the service doesn't involve any of the things that count as performance under the relevant provisions of the copyright act but only the tools to do it, its not a public performance.

If Aereo was literally only renting physical attennas, the situation would be rather different than the actual service they were offering.

So what constitutes a mere tool, and what constitutes a performance then?

> If Aereo was literally only renting physical attennas, the situation would be rather different than the actual service they were offering.

Then there is an easy workaround. Let them rent out hardware explicitly. And users can control that hardware anyway they want (for example install some video streaming tools there, may be made by the same Aereo, and stream to themselves). What level of involvement from Aereo makes it a performance?

harryh's point, and the point of this legal decision, is that the text of the law is not really relevant. Anything that appears to any halfway reasonable person to abide by the text of the law, but which upsets powerful groups, will be prohibited, because the goal of our IP legal system is to protect those groups.

Personally, I still think that is dumb and bad.

It's not that the text is irrelevant. It's that there is also the "spirit of the law" that goes along with that text. When you have to go around the text of the law by jumping through convoluted hoops (which Aereo has definitely done), it's likely you're violating the spirit of the law.

While Aereo's setup is undoubtedly clever, I am glad our legal system doesn't treat the raw text of laws as gospel. Laws are created for a purpose, and it would be impossible to foresee every possibility to get around the intent of a law when you are drafting it.

> It's that there is also the "spirit of the law" that goes along with that text.

Sure, and my point is that the "spirit" of these laws is simply to please IP lobbies. I don't think it's a good thing.

> When you have to go around the text of the law by jumping through convoluted hoops (which Aereo has definitely done), it's likely you're violating the spirit of the law.

How is what they've done convoluted? It's extremely simple.

That's not my point at all. That is, in fact, a gross misstatement of my point. Rather than assuming that everyone on the other side of this is an idiot and/or corrupt you'd be better served to step back a bit and try to work from the assumption that there are reasonable people on the other side of this.

The point is that I'm not a fan of the goals that this legal system is intending to solve. You might be right that this decision is effectively accomplishing certain goals, but that doesn't mean I share those goals.

Sure. But most people think that people who create content deserve to (mostly) own that content and have the right to charge money if others want to use it.

Not if you need more than one customer to be "a cable company".

Said antenna salesman would have sold antennas to much more than one household.

But he does not continue to own the antenna, and you do not continue to pay him.

What if he rents you an antenna, but you install it in your house?

I don't think that's clear, and it would probably call for a new ruling, informed by the particulars of the case...

The rental of an antenna is not a public performance. Offering a subscription streaming service including broadcast content to the public is a public performance.

That is the argument of the ruling, but it seems arbitrary defined.

I would ask what law grounds the definition of the black box. If one would try to do the same to a illegal content hosted on a website, where should I start drawing this box? At my ISP, since it is the edge where I as a customer receives the content? At the websites ISP, since it is the one that broadcast the content? The coo-location of the server, as it is there that the mechanism for broadcast is happening? The hardware, which produced broadcast? Or is it the person who acted on the machine in order to create the broadcast?

As with a onion, each layer covers the internal workings of the next one. The actual functionality being provided (ie content) is the same at each step.

Welcome to the world of common law. It's not source code with precisely defined rules. It's a set of values adjudicated by judges attempting to issue rulings that most would consider fair.

> It's not source code with precisely defined rules.

I do not see anyone making the argument that it is.

> It's a set of values adjudicated by judges attempting to issue rulings that most would consider fair.

belorn is offering arguments/evidence that an unfair decision was reached by the court in this case.

That's not what I was asking. The commenter above said:

> 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.

I was asking to explain the logic of that law. What is wrong with renting the antenna? Why it should be forbidden while using the personal antenna is permitted?

Well if you trust the ruling quoted in http://www.mercurynews.com/rss/ci_17625637 then the distinction is that a transmission from equipment you own to equipment you own is private, but transmission from equipment you rent to equipment you own is public. Don't ask me to explain why.

This area looks like a mess. What is the intent of that law to begin with? To charge for special right to "perform" the copyrighted work in public. I don't really get why this principle is extended to delivering the "performance" to the single user. Isn't it about "public" i.e. multiple aspect needs to be present?

The intent of the law is to allow over the air broadcasts (seen as a public good) to exist without completely undermining the ability of content creators to get paid.

How does a stereotypical cable company undermine payment for the public performance? They are only assisting in the reception of the performance for people with bad antenna locations. The stereotypical cable company doesn't extend the range, either, it's just a shared antenna.

Cable companies pay the broadcasters rebroadcasting fees.

I meant before the law was passed, when they didn't pay those fees. I cannot figure out how payment is undermined on a free broadcast. Can you explain how to me?

Honestly, I don't see how you justified the decision and agree that it is "incredibly stupid." Am I not allowed to pay someone to set up my antenna? If I do should that involve other cable companies at all?

"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."

I don't see what is wrong with this. Without that company, that person wouldn't be able to access the content - which is, itself, a "public performance." Otherwise, the person wouldn't be willing to pay for it. Either way, its an agreement between two private parties as to how they wish to access public information.

This is protectionism.

This is copyright. Copyright holders are allowed to assign reasonable restrictions on the content they broadcast publicly in order to monetize that content as they see fit. One of those restrictions is that the content broadcast over public airwaves may not be rebroadcast or retransmitted for non-private use. If your business model is encoding and retransmitting that content over the Internet, that's not private use. Considering the entire content industry's business model is based on controlling the distribution of the content that they own, there's no way this decision could have gone any other way. If you fundamentally disagree with the content industry's right to control distribution of content that they legally own (or at least control copyright to), then you are free not to consume any of it.

I have no pity for Aereo here. They based their business model on a legal technicality, and SCOTUS simply applied an updated technological interpretation to an old law. Their investors were big time media guys (Barry Diller was a founder of both Fox and USA networks) who knew the risks they were taking: it didn't pan out for them. Aereo is not a story of a plucky startup fighting the system; it's just one part of the system fighting another part of the system over who gets more money. Had Aereo won this decision, the real winners would have been Comcast, DirecTV, AT&T and Verizon.

>Had Aereo won this decision, the real winners would have been Comcast, DirecTV, AT&T and Verizon.

Is that supposed to be a bad thing? Public performances should be public! Location-shifting (at least within the initial broadcast area) and time-shifting should not need any additional licenses. Cable companies shouldn't have to pay for those particular actions either.

Copyright is protectionism. By definition.

Agreed. But protecting property that you own doesn't seem all that evil to me.

If it's a bad law then get the law changed. Unless you can make an argument to convince the supreme court why that law is unconstitutional, the supreme court doesn't decide which laws are good or bad -- they only rule against how (and why) the laws are written. Changing the laws is Congress's job.

If you read the dissent, you'll see a perfectly logical elaboration on the other side of the argument.

The difference between CATV and Aereo is that Aereo leases you exclusive usage of an antenna, instead of retransmitting the single stream to a large audience (i.e. a public performance).

Quite right. If anything, it's the law that's stupid. :)

You can. A third party can't.

Aereo is logically the same as a cable company. Cable companies license their content.

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?

If I'm not mistaken, the answers to these questions haven't changed because of this decision. So whatever you think the answer was before, that's the same answer now.

That is not clear to me. I can not pay Aero to set up and maintain the antenna and equipment or at least that is what this ruling seems to indicate. If I can not pay some one to do it for me why is ok for me to do the work with my own two hands?

The question I have is are the local broadcasters prevented from making deals with Aereo, is it too expensive for Aereo? Or rather did Aereo just choose to not deal with them in the first place? If they had won, could they 'install cable' or a dish in their data center? (For example, could I rent a cable contract through Aereo and then get internet at my home, my office and then my condo in the mountains and share the same content between the three?)

Seems to me that they should just start making deals with the locals, Dish network charges something like $5 a month for access to it so it seems like Aereo could ink a deal with a similar cost.

You don't own media content. You own a license for media content. Your use of the media is dictated by its license.

You don't own media content. You own a license for media content. Your use of the media is dictated by its license.

In general you don't need a license to consume a copyrighted work that you received legally. There was no "click to agree" on the last book I read. You only need a licrense to exceed what copyright allows.

Some software companies have argued that the hierarchical storage of a computer violates copyright, and thus all software requires a license to run. But this case was not about software.

Note: not a lawyer, just a highly interested observer.

> You don't own media content. You own a license for media content. Your use of the media is dictated by its license. In general you don't need a license to consume a copyrighted work that you received legally. There was no "click to agree" on the last book I read. You only need a licrense to exceed what copyright allows. Some software companies have argued that the hierarchical storage of a computer violates copyright, and thus all software requires a license to run. But this case was not about software.

A number of courts have broadly agreed with those software companies. While you're correct that you don't need a license to read a book, this is true (broadly) because you don't need to make a copy of a book in any meaningful sense in order to read it.

But to run a piece of software, or read an ebook on a computer, or play a music file, you do need to copy it -- not just into hierarchical storage but also into RAM -- and this brings copyright into play (as far as the courts have generally been concerned), and thus necessitates all of the end-user licensing of digital media.

...not just into hierarchical storage but also into RAM...

Just to clarify, by "hierarchical storage" I mean the entire storage hierarchy of the computer, multiple tiers of which may contain a copy of any given data in use by the computer: registers->cache->RAM->HDD Cache->HDD[->backups]

Can you cite a case at the appellate level that justifies copyright licensing on the basis of ephemeral copies in memory?

So according to Wikipedia there is a specific statute that expressly disavows the notion that someone who bought a copy of a computer program would infringe by running it (17 USC 117), the court found that a repair tech wasn't the owner of the copy so the statute didn't apply, and Congress immediately passed another law reversing the effect of the court's decision.

I guess that's technically what I asked for, but I don't think pointing out the existence of that statute does much for the argument that you need a separate license to run a computer program you paid for.

Let's try this again: Can you cite a relevant case that hasn't subsequently been invalidated?

But broadcast television is a bit different since in return for using the public airwaves the broadcasters have certain obligations including providing free access over the airwaves. I don't think you can make pat, blanket statements like that in this specific case.

I understand the Court has some role in determining intention, but the nature of the technology in the background is crucial in determining whether it violates the law. I'm confused about the implications of the ruling.

Would this ruling find me liable if I created "dumb pipe" rented antennas streamed online, like Aereo, if I didn't make it an express goal of the service to watch television? Or say, a filesharing service which has plausible deniability (like client-side encryption) and no expressed intentions for its use to violate the Copyright Act, but that can incidentally be used by consumers to do so? Could the court simply call those kinds of services/software "technological obfuscation" and consider it forbidden? (I believe the court has strayed toward this argument in Grokster and other cases unfortunately.)

If so, I can't make a fair, fundamental distinction between that and any other cloud-like service. Devoting a section to "distinctions" to make lower-court precedent messier cheats a proper interpretation of the facts and will create ambiguity.

I really hope I'm misunderstanding this!

The potential for this sort of confusion is one of the main things that Scalia's dissent strongly criticizes:

  "The Court manages to reach the opposite conclusion only
   by disregarding widely accepted rules for service-provider
   liability and adopting in their place an improvised
   standard (“looks-like-cable-TV”) that will sow confusion
   for years to come."

What I am still wondering is 1) does there remain any possibility to set up such a service so that it could reasonably be called a "long antenna cord" (which part of the Aereo solution violates that?) and 2) does the special nature of broadcast content vis-a-vis public airwaves, etc, have much of an impact on the situation?

This non-lawyer feels that Aereo might have mis-stepped by 1) not going with a tighter "we are a long antenna cable" approach and 2) trying to scare everyone into thinking a ruling against it would somehow stifle mostly unnrelated cloud innovation.

In other words, copyright laws are not some clear set of rules derived from a clear set of ideas or principles. Rather, they are a bunch of vague nonsense that will be interpreted by government on a case-by-case basis, such anything that is opposed by major groups which represent content creators or distribution channels will be deemed illegal.

I agree - the dicta in this case sends a strong signal that SCOTUS will likely closely monitor any citations of this case as precedent for aggressive application of the Copyright Act. They are also sending a message to the legislature that there may be issues now arising from the language of the act that require clarification (not that Congress is likely to act on the message). I'm a bit disappointed in the outcome, and agree with Fred Wilson that this likely pushes innovation towards hardware operated and installed by the individual to address the issue, but, as defeats go, this is a reasonably encouraging decision.

"I think, the Court got it right in the end"

I don't see how this really differs from a person setting up recording equipment in his/her own home to capture that OTA broadcast for later viewing—which itself is legal.

Because Aereo was selling a service of setting up and running that equipment for you.

I have mixed feelings on the whole case but your example isn't directly comparable.

Really though the whole idea of local broadcasts of national shows no longer makes sense. The networks should just live stream their shows online for everyone. This isn't in the interests of the local affiliates and probably is not legally feasible right now due to various contracts with them.

But because of technological changes we don't need local affiliates in their current form anymore. Of course there are local news shows and they are still valuable and networks should show locally targeted commercials but the old broadcast using local affiliates model doesn't make sense with modern broadband capabilities.

I think my example was valid.

Tivo, for example, is also a middle-man that is doing essentially the same thing. Tivo grabs your paid (in this case) cable TV signal, and for a separate fee, records that content onto their hardware and allows you to stream it on devices and televisions without using the cable provider's own hardware.

> Because Aereo was selling a service of setting up and running that equipment for you.

That is a ludicrous precedent to set. Making your services available for everyone to purchase does not make the service itself a public utility. My sending an email containing a copyright file to myself through Gmail's service (which they offer to anyone!) is not the same broadcasting that file publicly and violating copyright, and it's insane to think that it does. This is why cloud service companies are up in arms about this decision.

Scalia's dissent is informative on many of the questions being raised in the comments (starting on page 23 of the ruling here: http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf).

He compares Aereo to a photocopy shop that provides users with library cards to access materials. Providing the copier and the card isn't a direct violation of the Copyright Act (via direct, volitional "performance" of a copyrighted work). Aereo may be guilty of a secondary violation (enabling a direct violation by others), but that wasn't the question before the court.

To make it even more interesting, this case was specifically about the "play" function of Aereo, and the Supreme Court wasn't addressing at all its "record" function, which is essentially returned to lower courts for them to decide (and I suppose only if Aereo continues to fight).

To me, one difference is the presence of a third-party for-profit entity (Aereo, in this case).

That seems to be the only real distinction anyone can point to. But how is that different than the customer going to a place like Rent-a-Center to rent a TV antenna and paying them for installation?

This is really the problem with the "look what it does, not how it does it" school of reasoning. What it does (allow you to watch OTA TV) is allowed sometimes and not others. How is a court supposed to differentiate between one and the other without looking at how the thing actually works? How is a company supposed to answer the same question about their product or service?

By weighing the intentions of the company against the intentions of the law.

The intentions of the law were to prevent this rebroadcast of content. The intentions of Aereo were clearly to do this. Aereo tested the waters by trying to make a distinction between public and private, and between transmission and performance. Ultimately, the court did not agree such distinctions were valid.

> By weighing the intentions of the company against the intentions of the law.

Putting aside how you're supposed to evaluate the intent of Congress or Aereo without evaluating exactly what it is they're doing, are you ready for the stupid consequences of that? It would mean someone doing the same thing with the same result would be legal if they had different intent. For example, someone could set up a service where customers can rent a VM in the cloud attached to a software radio[1] receiver that can receive any radio signals. Then "someone" (do you really care who when the outcome is the same?) publishes free software that allows you to use that to accomplish what Aereo does and more. The intent of the antenna provider no longer has any identifiable relationship to broadcast TV and yet people are still watching NBC without paying for cable. The same is true of the software provider, whose software has no reason to distinguish between a radio receiver in the cloud vs. in your home. Is that the result you were going for?

[1] http://en.wikipedia.org/wiki/Software_radio

Intent of involved parties is already a big part of the legal system and is a major (and sometimes necessary) aspect of many laws[1]. And in my opinion having intent matter is just common sense. It's why torrent clients are perfectly okay despite how easy it is to find torrents of copyrighted material, but Popcorn Time was probably going to have a challenging time in the courts[2].

[1] http://en.wikipedia.org/wiki/Mens_rea

[2] http://getpopcornti.me/

The way an intent requirement is supposed to work is that there is some evil specified by the law that you are not supposed to do, and the prosecution or the plaintiff has to prove not only that you did it but that you intended to do it.

The problem with cases like this or Grokster is that it's the reverse of that. If you intended to get the same result as the prohibited thing then whatever it is you actually did is retroactively defined as the offense. It's thoughtcrime. You were thinking "bad thoughts" when you did something, therefore whatever it is you did is prohibited.

The consequences of that are all kinds of stupid. On the one hand it means that everybody has to hire lawyers and censor their employees to make sure nobody says anything that could retroactively cause their actions to be interpreted as unlawful by providing evidence of intent. It's completely pointless for BitTorrent to be OK while Popcorn Time isn't. Popcorn Time is essentially BitTorrent with a different logo. If you can't shut down BitTorrent then being able to shut down Popcorn Time will cause a zero percent reduction in piracy.

Meanwhile for all the language about not wanting to discourage innovation, how is that not the only possible result of this? You might as well post a sign that says "technological solutions to legal problems are prohibited." And technological solutions to legal problems are great, because legal problems are problems and technological solutions are solutions.

Right. The question asked is "Does the technology have substantial non-infringing use?". In the "Betamax case" [1] it was ruled that using VCR's for time shifting was fair use, even though a VCR could be used to illegally copy and distribute content. It had substantial non-infringing use. Bittorrent has substantial non-infringing use, so it is not illegal, though it also has illegal utility.

[1] http://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Univer....

Can broadcasters now sue Aereo for damages?

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."

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?

The conservative Justices generally favor looking at the plain text of the statute, while the liberal Justices are more willing to look at the broader implications and view a situation in functional terms. So it's unsurprising that the liberal justices, and Chief Justice Roberts who is less textualist than the other conservatives, were willing to look past the technicality Aereo was relying on to see that it was functionally equivalent to any other television streaming service.

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

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

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.

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.

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.

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.

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.

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.

"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.

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."

> There's nothing "contorted" or "illogical" or "false-to-fact" about the copyright law in this case.

The whole thing is contradictory. If the broadcasters broadcast for free over the air and local cable companies retransmit to local customers for free because it increases customer exposure to the broadcaster's advertising, that would be consistent. If over the air viewers had to pay to subscribe and broadcasters also charged cable companies to retransmit, that would also be consistent.

Allowing viewers to watch for free over the air but charging money if you watch via a cable wire is an illogical contradiction that the broadcasters successfully lobbied to have codified into the Copyright Act.

It's illogical, but not in a way that's fatal to copyright. If the broadcasters have control of the content, they can license its usage downstream as they see fit.

So it's stupid, but not self-contradictory. The law can be enforced with no contradictions.

> So it's stupid, but not self-contradictory. The law can be enforced with no contradictions.

Until you have a technology which is neither over the air transmission nor cable TV and there is no logical way to classify it as one or the other because the original distinction had no intelligible justification.

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.

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.


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?

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".

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

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

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

If Aereo were ruled legal today, the cable companies would figure out tomorrow how to duplicate Aereo's position and avoid paying the broadcasters any fees.

Ok. I don't see a problem with that. I do have a problem with the legal system being used to prop up industry(s) that are otherwise no longer viable.

I don't know enough about this specific case to judge. But, by in large that is what copyright law has been used to do for last 20+years.

By statute, broadcasters can choose whether a) local cable companies are required to carry their networks [which is why public access still exists], or b) to negotiate for the rate, which lets the cable company walk away if they cannot come to terms.

>The problem is Aereo is charging for this service

To me that's like saying Sony who charges $150 for an outdoor digital antenna, RCA who charges $80 for a signal amplifier, and the installer who charges $500 to rig it all properly should all pay the content owners because they enabled me to watch the freely available content.

I could pay Aereo a small monthly charge or I could modify my house at great expense and end up with the exact same outcome. I don't see the difference.

You missed one:

Hulu - pays a fee to creators for use which it recoups/profits from ads

Aereo - pays no fee to creator, still profits from ads

Broadcast television contains inline ads that compensate the broadcaster, who then compensates the creator.

>still profits from ads

I must have missed something. How do they profit from ads?

So, what's the maximum length of cable I can between my antenna and my tee vee, and not be in violation of copyright law?

The problem I have with a "quacks like a duck" test is, in analogy, "Your honor, it sounded like a coot to me". That is, it's not a test I can apply by myself. I have to go ask The King of All Duck Sounds if it's a duck, a coot, a widgeon or maybe a grebe.

And that's fine, if we're all interested in a society where we get permission to do anything. If that's what we are going to have, I just want those permissions to extend to all, and for Lee Greenwood to be banned from singing "Proud to be an American". Otherwise, we're going to end up with a de facto aristocracy and underclass situation. Which is prima facie bad, legal or not.

I pretty much agree with you.

Personally, I am much more interested in what Aereo's next step is going to be.

I think this is key "To redistribute this content to users". The redistribution is not that far from what's currently OK right now, though. Is it illegal (right now) for one to record (using an antenna) on to a TIVO and then to watch said recording over the internet for yourself?

There is 1 antenna per user. There is 1 recording per user (Aereo is not recording a single instance of desperate housewives and then muxing that out to everyone). It is over the network.

Other than not owning the means of reception and means of storage, I don't see much of a difference between this and in home recording.

The difference is obvious: when you're home recording, you're doing it for yourself, while Aereo is doing it for others. The fact that it's using 1 antenna/recording per user is an irrelevant technical detail.

What's the difference between me clicking on my remote to tell tivo to record for me than me clicking on a button in a web page telling aereo to record for me? It's still being done on request, no?

Aereo controls what gets recorded, TiVo (the company) doesn't. They're not selling an agnostic tool, they're selling the recording of a particular set of channels.

Not sure that this is true from a technical level, but from a customer level, I actually choose the shows to be recorded in a similar fashion that I would use TiVo. Aereo only records what you schedule to be record when it comes to their DVR portion of the service.

When I mean record, I mean capture and encode the signal. It doesn't have to be viewed asynchronously to be a recording.

How does Aereo control what gets recorded? I click to record a show in the interface. That tunes the antenna to that channel at that time and records an individual recording for me.

By choosing where to place the antennas.

Choosing where to place the antennas largely affects the who can sign up for the service. Antenna placement does not cause me clicking "record channel 4 at 7:30 pm" to become "record channel 7 at 9 am".

Try again?

When "I" am home recording, I am actually using the capabilities of a black box technological device purchased from a 3rd party. Are VCRs illegal now?

It's still you who are recording, not the 3rd party. If I purposely hit someone with my car, the car manufacturer can't be blamed, but if I tell my driver to hit someone and he does, shouldn't he be blamed?

It is you that are recording with Aereo's service...

Not anymore than I'm driving through my driver. Aereo controls what gets recorded, not the user. They're not an agnostic tool that can be used for any purpose, like a VCR.

Are you really suggesting it should be illegal for me to pay someone else to record a television show for me while I'm away?

Oh, I would never suggest that. I think what Aereo does should be legal. But judges are supposed to uphold the existing law, not what they think it should be.

There is a narrow exception for free over the air TV.

Are you saying that NBC does not pay anyone for the rights to broadcast a movie?

No. You don't pay to watch NBC over the air. Aereo tried to be the one to watch for free and then redistribute it to you also for free (to them).

You don't pay to watch NBC over the air.

And yet that has nothing to do with content producers being compensated.

Don't forget that while users want to watch video entertainment, quite a lot of users have no specific preference as to what they watch. Each consumer has no more than 24 hours in a day to devote their undivided attention to something.

Studios are in a competitive environment. Not only do they have to fight other current studios for monetizable customers, they have to compete with the entire corpus of existing works. Fringe has to compete with X-Files. Law and Order: New Episode has to compete with Law and Order: Rerun.

In order to make money from customers, there must be an intact distribution path between supplier and consumer. In the world of physical goods, you cannot sell a Chinese widget to Joe Merica without a cargo ship, a stacktrain, an intermodal truck, a big-box store, its parking lot, and the roads between it and Joe's house or business. All that has to be paid for. It is completely unreasonable for the overseas manufacturer to expect that he be paid by all those links in the supply chain for the privilege of carrying the goods.

The manufacturer has to pay them a portion of what he earns from Joe on the sale, because without them, he cannot get Joe's money at all. The transport network provides value to the manufacturer because it increases the potential size of his market. Likewise, the manufacturer provides value to the transport network by giving it something to move. Neither one can even try take the whole pie, or it ceases to exist.

The distributor has to pay the supplier. But the supplier also has to pay the distributor.

In the case of broadcast television, the problem of who pays whom is partially resolved by advertising. Advertisers pay the supplier for access to their customers' attention, and the supplier can therefore pay distributors in proportion to the number of customers they can provide.

This is why broadcasters pay so much for licenses. Over-the-air radio broadcasts can bring in a huge number of customers with relatively low infrastructure investment. As long as they are paid by advertisers on a per-viewer basis, there is no reason why they should be getting any additional money from anybody for rebroadcasting rights... except one.

If the rebroadcaster is not providing the same number of consumers for the advertisers as for the entertainment content, the supplier is not getting paid for them. Enter the commercial-skipping DVR. The advertising model breaks down. The advertisers have to assume that every person not watching a show live is skipping their ads, so they only pay for the live audience.

And so castles made of sand fall in the sea eventually.

If any necessary part of the supply chain is not paid for, the money dries up for everyone. And the advertisers are paid with statistics. Aereo probably could have made this go away simply by offering up timestamps and button presses, to identify the number of customers actually watching the ads.

The concept of "loophole" seems to be a loaded way of saying "specification in the law with which I disagree".

We hear all the time about people taking advantage of tax loopholes, for example. Yet these very loopholes are generally designed-in, to push people into a particular behavior. For example, I could pay less tax this year if I had solar cells installed on my roof. Would you call this means of avoiding taxes a loophole?

Modern politics is, as much as anything else, about finding ways to coerce people into the behavior you want. We set up huge taxes on tobacco, for example, to try to cut down on smoking. We help pay back student loans in order to get people to take up teaching. But most of us wouldn't criticize someone for becoming a teacher, saying they're taking advantage of a loophole in student loan agreements.

I can't see a principled way to draw a line in this, other than to simply accept laws for what they are, and similarly accept those who conform to the law as "law-abiding".

The solar panel example is not a loophole. It is a feature. A loophole would be an unintended side effect of designed behaviour. People who pass laws have intent; the courts interpret the meaning of the law and try to divine that intent; a loophole is where a law was passed to prohibit a behaviour but was poorly drafted and leaves a gap for someone to carry on doing the otherwise prohibited behaviour.

I agree that drawing a line is tricky. Certainly people are law abiding unless they are not obeying the law. But that doesn't stop me asking if people are obeying the letter and spirit of the law, and forming an opinion based on the result.

Aereo was banking on partially-relevant case law - not the statute itself - from the Second Circuit which was contradicted elsewhere in the US.

"Exploiting a loophole in the law" - does that phrase really mean anything?

For the general public, sure, all citizens may advocate for different laws. In the context of a Supreme Court decision, it's much less clear. Is the court really charged with deciding what the law should have been, if only those idiot legislators hadn't mistakenly put in yet another loophole? (Aside: does anyone really think these are mistakes?) Surely the court would be on firmer ground interpreting the laws as written.

Yes, it does mean something. Laws have intended effects; they are a mechanism to achieve some goal. "Exploiting a legal loophole" means finding a way to conform to the mechanism itself, but avoid that goal.

Laws are the map, not the territory.

Maps typically describe their purpose honestly and plainly (e.g. The Americas circa 1805). The "honest and plain" intentions of the laws produced in the US are rarely provided.

No, the phrase "loophole in the law" does not mean anything anymore. There may have been a time when it was fairly used to describe tax cheats but things are not so black & white now.

Aereo did their system in a way that very carefully conformed to the law

Except for it didn't.

If it's illegal to do X, but legal to do each of A, B, and C, and A -> B -> C does X, it's not surprising when X is illegal.

What does X represent here?


Three justices disagree with you.

I regret engaging this point of the conversation since it was all going to come down to "but it wasn't unanimous!"

"innovative" !== "technologically innovative"

I won't concede that point, but even assuming you're right: there's nothing "innovative" about the business model of distributing in-demand content for profit without compensating the content creators.

Isn't that the point of advertisements for OTA broadcasts?

I disagree. To be honest Aereo's service was about as reliable as your average antenna is (read: not reliable.) To me it felt like I was renting a really large extension cord for a cable. One that I need because I live in a basement apartment and even with 60 dollar antennas I get spotty reception at best. Aereo was more consistent but the quality was that of what you would expect from an antenna. It didn't feel like someone was recording 1080p HD quality from cable and then streaming it to me. Cable is not just crummy antenna quality that is then piped to the home. They get high quality from the channels.

Broadcast DTV usually looks better on an antenna than on cable.

I recently gave a pair of rabbit ears to my mother-in-law and we were amazed at how much better the picture quality was. She's lucky, howver, to live about a mile or two from the sticks. Most people need a better antenna.

Cable HDTV is often heavily compressed so they can fit hundreds of junky channels into a limited pipe. Particularly for sports where there is fast motion and fine detail, the difference is night and day.

So, I just spent the last two months working out the details of how to put a digital cable channel on a hotel cable headend. I have some clarification of what may be going on here.

Cable headends tend not to have very much compression equipment, sometimes they have stuff used for feeds local to the headend, but usually the compression happens at the originating facility. For something like CNN, this is at their studio. The signal with that original compression is encrypted, uplinked to the satellite and then received off the satellite by receivers at the headend. It comes out of that receiver as a compressed digital signal called ASI, which is MPEG2 compressed video over SDI. It is then typically fed into a demultiplexer/multiplexer that will combine or separate it into different streams and then it is fed into a QAM modulator. For ATSC the same is fed into a 8vsb modulator (or something like that). For encrypted systems it is fed into a encryption unit before being fed into the QAM modulator. The key here is that each video stream is not recompressed even when it is remultiplexed.

The issue may be that of signal strengths and associated error rates and how that is reflected in encrypted streams. Typically encryption cases degradation to be reflected poorly in the signal compared to unencrypted signals.

I get better quality video from my antenna than through cable. In my experience the tv station uses less compression than the cable company. And since the switch to digital OTA video the picture has been rock solid.

I've had this experience in both Columbus, OH and Phoenix, AZ.

Well, for the first time in a long time I agree with something Scalia says...Congress is the body that opens loopholes in the law, and it's their job to close them. Not the court's.

What's your definition of innovation?

The user involvement bit is addressing the Cartoon Network case regarding Cablevision's remote DVR architecture that Aereo is based on.

Cablevision designed a remote DVR system that made transient, user-specific copies based on the user's pressing a button on their set-top-box remote. In their defense against Cartoon Network et al., Cablevision made the "volitional conduct" defense that Scalia talks about in the dissent here- essentially, that the user who pressed the button was responsible for making the copy. Cablevision won at trial and on appeal in the Second Circuit.

The biggest difference between the Cablevision case and the Aereo case is that Cablevision has and pays for the broadcast licenses that Aereo was trying to avoid having to obtain.

That's crazy. The whole point of copyright law is that you can get the same content in different ways, some of which are legal [edit:authorized] and some are not. Now the Supreme Court says that all ways of getting content are the same?

They're not the same, but they are almost all covered under copyright, yes.

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 - 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.

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.

Sony was selling exactly this thing....9 years ago. They made LocationFree base stations which would stream your TV signal to your PSP anywhere in the world over the internet. That was incredibly impressive for 2005.


Does it even need to stream from the house (versus uploaded earlier than requested on my device) ?

Am I as a consumer allowed to store my DVR material on hosted storage then have that stream to me later?

Then can my cloud provider cache and de-dupe content on their environment so that they don't need to have 4 copies of the same episode in cache?

I wonder, can a new company sell set top antennas that perform better than others, because they aggregate signals and can enhance the quality of your dvr material?

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?

Aereo should pivot to be a colocation company specifically for this equipment. Sell the device to the end user for $100, charge $8-12/month for "colocation".

What next? Illegal for a user to colocate their own antenna equipment?

That feels immoral when I say it out loud. Do we not worry about intent and spirit of the law anymore?

I have the right to receive over the air broadcasts, using public spectrum that broadcasters have been permitted to utilize. Where my antenna is, who owns it, and how I retrieve, view, or store that content is irrelevant.

Sometimes, the law is wrong. This is one of those cases. Aereo attempted to comply with the law, and was told they failed. Fine. Keep fine tuning your business model until you're just within the confines of legality. That is how the law works, no?

When the intent of the law is to take something that's legal to do personally, and make it illegal to outsource, I'm not bothered by going against it by removing juuuust enough outsourcing.

The first person to do so will be a sucker. Seriously, look at how, why, and by whom laws are written. Ignore the marketing, whether it's from politicians or the pundits who parrot them.

From the link: "Any program which they can watch on their TV set, such as live prime time TV programs and sports events"

There are two reasons I paid for Aereo:

1. I cannot receive a digital TV signal over the air where I live. 2. I wanted just local channels, but did not want to pay another $30-50/mo for other channels that I'm not going to watch.

The Hauppauge product solves neither of these problems.

Relocating the receiver to a metropolitan area greatly increases the number of people who can watch the content, and ads, that are being broadcast.

As much as I do not agree with Justices Roberts or Scalia, I agree with their dissent in this case. This decision makes no sense from a legal (or technological) perspective.

SiliconDust has been selling this sort of product for years: http://www.silicondust.com/products/hdhomerun/hdhomerun/

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.

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.

Yes- they are renting me an antenna in the locale the performance is being broadcast, and providing connectivity to that antenna. That is not a loophole- that is the letter of the law- that an individual can receive a broadcast performance of a work, but that it cannot be duplicated. It meets the letter of the law- unlike a system that received the broadcast signal, captured it, and provided the same copy to many users, which would violate the 'public performance' section of the law. Renting me an antenna makes it my individual private antenna, removing the public aspect of the performance, and making it perfectly legal.

It's the letter of a law written in the 1970s, when streaming technology like this didn't exist. No-one had even conceived of the idea that you would group hundreds of antennas together and stream them across a wide area network to users.

The spirit of the law as passed was to stop cable companies capturing and rebroadcasting over-the-air TV signals without compensation. So it shouldn't be too surprising that the Supreme Court made the judgement they did.

It's quite simple: when this law was created, was Aereo's use case considered? If the answer is 'no', then you can expect the law to be refined to cover it at a later date. Odd legal loopholes don't get to stand just because they've been around for a while.

To add to this, they didn't see a distinction between transmitting and performance, and felt the law was clear about the distinction between the role of the viewer and the performer. What was made clear was that one person could not hold both roles.

On if such a performance was private or public: the decision said that it was a moot point as the "commercial objective" of Aereo was the same as if it were public. The law as it stands did not intend to separate private and public performances.

Oh, goody! Do we all now get to apply that type of reasoning to all laws? The CFAA of 1986 is a good one to apply it to, don't you think?

Also, how about applying the spirit of the Statute of Queen Anne. Wouldn't like that one, I'm thinking.

"Spirit of the Law" - humbug.

Do we all now get to apply that type of reasoning to all laws?

We don't, no. The Supreme Court does, however.

"Oh, the law says no cars in the park but I'm driving my pick-up truck through the park! Ha ha, I win, I talked the computer to death like Kirk did on Star Track!1"

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

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

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.

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.

My vague understanding of the sprit of the law that allowed broadcasters use of the public airwaves was that it required for the individuals to be able to make use of the transmissions.

Aero by many is seen as a tool to make use of those transmission on public air waves therefore in the sprit of the law.

Now we know that it was not actually conforming to the law.

It's called scaling horizontally, and pretty much every company that cares about service availability does it. Is that really your argument?

It isn't scaling horizontally at all. You scale horizontally to increase your capacity, installing one antenna for every user has zero to do with capacity and everything to do with legality.

I maintain that having a multiple of identical components in a system that perform the same duty is horizontal scaling. There are many reasons to scale horizontally, and I'd say increasing capacity is exactly what Aero would be interested in, not to mention fault tolerance. My career is based on building distributed fault tolerant systems, which is potentially why I think I understand their approach differently than you do.

But yes, horizontally scaling systems comes at a cost, sometimes they are more inefficient, sometimes they cost more, but in the long run if it helps you meet the goals of the business it shouldn't be illegal.

Their approach was not to create a distributed fault tolerant system (but boy am I glad I'm talking to someone with such expertise with them) - it might have been a neat side effect of what they did, but it wasn't the reason for doing it.

They said themselves that the reason each user has an antenna is because it was what allowed them to legally operate. Their hardware setup was entirely based around a loophole in existing law. Ironically, it's awful horizontal scaling, too - if a single antenna breaks there is no backup, the user assigned to it loses their TV signal.

They give two antennas for each user (one for live stream and one for DVR). And since they were still adding new users, it is reasonable to think that they had, at any given time, more pairs of antennas than current customers. If one antenna failed, I imagine they had a backup one they could switch to.

Don't their antenna's cost 10 cents or something really cheap like that?

The antenna is cheap, but that's not the whole cost. You need the 8VSB reception stage, and then a slice of a server to transcode that 8VSB into H.264 or whatever format they chose. Then you also need disk space for the DVR stuff.

It's not the array of antennas that boggled me the most, it was the racks and racks of servers encoding the exact same show hundreds or thousands of times in parallel.

They look like unbent paperclips sticking out of a pcb.

The Supreme Court is not able to be wrong on a matter of U.S. law. It gets to decide what that law means, not you.

It's not the decision I'd hoped for, nor the one I'd make, but it's nonsense to claim that it's "wrong". All we can do about it now is to get the law changed.

There are Supreme Court decisions that are generally regarded as "wrong" by posterity. Dred Scott v. Sandford comes to mind.

> The Supreme Court is not able to be wrong on a matter of U.S. law. It gets to decide what that law means, not you.

The Supreme Court decides interpretations of law, but the law itself (as written or as interpreted) is quite capable of being wrong. Law does not determine morality.

That also does not mean that SCOTUS is "wrong". A law can be "wrong" (subjective), and the SCOTUS will still have to uphold it if it is constitutional.

They certainly can be wrong. They just can't be overruled by anyone except future members of the same court. In this sense, they are not always right, but they are always correct. If they were always right, there would never be dissenting opinions from 8-1, 7-2, 6-3, or 5-4 splits.

We just pretend that they, like the Catholics pretend for their pope, are infallible. At some point, you have to let the matter be settled in a final and lasting way, otherwise nothing can get done. It is sometimes better for a matter to be settled in an unsatisfying way than it is to have any uncertainty remaining.

A ruling from the ultimate arbiter is not an ethical mandate. While one can hope that their decision is compatible with and motivated by moral values and ethical principles, it could also be the result of political expedience or a bit of bad pork in yesterday's supper.

It isn't right or wrong. It is simply what has been decided by our most prestigious professional arbiters.

If you don't like what they decided, you can accept it and move on, or start petitioning a legislator in an effort to make their decision obsolete.

...Or, there is something else you could do. It rhymes with "abhorrent". As long as we're not concerning ourselves with "right" or "wrong" here, we could simply accept the precept that if the courts fail to deliver acceptable results to the litigants, they might seek them out by other means. It really depends on how mad Aereo is about the fact that a private business interest was able to use government power to destroy a potentially disruptive competitor.

I would guess that the vast majority of Aereo's business expenses were a direct result of attempting to comply with the law, and its apparent loopholes. The service could be replicated at lower cost by one antenna per broadcast station, local resources to convert the signal into compressed video files, and redundant servers in multiple safer jurisdictions. The successor could simply take subscriber fees to ensure that a particular station is recorded during a particular interval, and the resulting video is seeded for a minimum period of time. Now that they know that their entire business model is ruled illegal, there is no particular reason to comply with any part of the law... other than their respect for the law.

Aereo may choose not to do this, but they have proven that there is a market for it, and nothing excites the black market more than a proven demand for an illegal good or service. What's more, the black market equipment will be virtually indistinguishable from legal gear, so long as the operators take even the most rudimentary steps to cover their tracks.

The people who used Aereo aren't just going to go back to cable. They are simply going to move from a provider that could be sued out of existence to one that is effectively invisible, or withhold their money and wait for something else worth spending it on. I understand that the cable companies had little choice but to attack Aereo, but they have to understand that they created the market conditions for Aereo to appear. As long as they exist, they will be playing whack-a-mole with every new service that tries to provide television services better than cable.

> 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.


What makes a cable company "public performance" is that the company is selling services to the general public in an arms-length transaction. The shared nature of the transmission medium is irrelevant.

They could send streams directly to individual subscribers using IPTV, as AT&T does with U-verse, and it would still be a public performance.

That is why Aereo needed the individual antennas to try to take advantage of a perceived loophole. Aereo with one big antenna would not have made it to the Supreme Court, because it would have been so obviously in the wrong.

the definition of "public" in public performance is not about who the broadcast goes out to, but about the relationship between the broadcaster and the broadcastee.

If I invite 100 people to my house to see a movie, it's not a public performance (supposedly) because they are coming as members of my social circle. If I instead showed at a movie theatre and charged for it, and the same 100 people showed up, then it would be a public performance because those 100 people came as members of the public.

Here Aereo broadcast to customers as members of the public. Because Aereo owned the equipment, they were the ones doing the broadcasting (in the oral arguments one of the judges commented on how if instead they sold the equipment and just provided hosting, the position would be much more defensible).

But, like what many others have said, the intent of the law is really what matters, and the definitions of public performance are much more about intent than about technical implementations.

Is that really a necessary part of 'public performance' according to law? You can show movies for pay if only one person is in the audience? I'm not sure that argument works.

The Supreme Court is wrong

The Supreme Court is unfortunately trapped. As the opinion notes, the Court once took a position very like Aereo's, way back in 1968, on the subject of shared "community" antennas (Fortnightly v. United Artists).

The Court's position today is that Congress more or less immediately amended the Copyright Act in response to that decision, and now the law as written no longer supports the Court's former position (and thus no longer supports Aereo's position).

what's absurd is almost 100 million was invested in Aereo.

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."

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.

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..


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.

> 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.


Aereo wanted to define the activity by drawing a box around the tiny antenna and the user.

The Supremes draw the box around Aereo and their customer base.

So if Aereo were just in the antenna rental business, and some other entity were in the cloud DVR business, and consumers paired them together it would be just fine?

Edit: having read the decision, it seems there were companies that provided antenna services back in the 60's, and congress amended the copyright act to forbid them. The ability for Aereo subscribers to choose which material is transmitted is key to Aereo's argument.

Well, if Aereo would provide antenna and SDR that end-user could control (and a third party decoding software would decode the video, huh) - would it be the same?

Maybe they should be in the hardware selling business instead.

Redesign their system to have discrete units. Aereo users would then buy the boxes (similar to that Hauppauge one linked elsewhere in this discussion) and pay a monthly service fee for power and bandwidth. If they are done with Aereo, they can have the box shipped to them for a small fee, or sell it back to Aereo.

The user will have complete and direct control of the TV box. Then there should be no problem.

Hardware costs will be higher though, and maybe the service ends up costing more overall. It would still be worth it for some people, like my friend who (while he likes sports in general) really just wants to see all of his favorite sports team's games from another city. I know of other people with similar use cases.

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.

Can someone explain the gist of what's going on to an outside observer not familiar with Aereo?

Aereo is a company that setup 1000s of DVR's with 1000s of antennas on a New York City rooftop. They lease access to these DVRs for roughtly $5/month and the DVRs stream to your computer.

In the US, broadcast channels are free over the air. However, there is a law that says if cable companies want to retransmit the broadcasts, the networks can charge the cable companies.

Is Aereo "retransmitting" the broadcast, or just renting personal antennas? That is what the Supreme Court was deciding.

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.

People who regularly watch the court know that judges falling into "Left" and "Right" camps are the exception, not the rule. There are typically splits were some of the "Left" judges agree for reason X and some disagree for reason Y, and/or some "Right" judges agree for reason Z and disagree for reason W.

And that's a good thing. This isn't a sports game where I should root for "my team." The judges shouldn't start from the end position they want and work towards that.

The endless 5-4 decisions of late tend to contradict that. Most judges are predictable. Roberts and Breyer being an exception, and slightly less predictable.

5-4 decisions tend to be the ones that make news. For the most part, the judges on the court agree with each other. In the the current term through June 18, 2014, only 14% of Supreme Court cases were settled in a 5-4 vote.


> 5-4 decisions tend to be the ones that make news.

Decisions on issues that have high political salience tend to be the ones that make news; there is currently something of a correlation with political salience and 5-4 split decisions on the courts, since Justices positions are most ideologically (rather than legally) consistent on points that were politically salient at the time of their appointment, and the issues with the strongest political salience also are often relatively consistently salient over an extended period of time, and since the court splits at or close to 5-4 on a lot of enduringly-salient issue areas.

But plenty of 9-0 issues on issues that have current salience make news, and 5-4 decisions on which the justices are split but there isn't a great deal of political salience often aren't treated as any more newsworthy than any other decision.

That's the perfect data, thank you.

I went looking through those 5-4 cases to see if were along the left/right line. Only 4 of the 8 had Alito, Roberts, Scalia and Thomas on the same side.

(The second had Thomas writing the opinion and Scalia writing the dissent. That's pretty rare.)

EDIT duh, that's what the color-coding was for. Oh well.

I think you are confusing "left and right" with "mainstream Democratic and Republican politicians". These categories don't really overlap all that much.

Actually "they all" didn't agree. The right flank of the court (Scalia, Thomas & Alito) dissented.

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


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.

in the fraternity of lawyers and judges, IP rules

I believe that's the key insight. "Intellectual property" is good (in the sense of generating lots of work) for the legal profession. Judges tend to rule towards things that benefit the legal profession(s), and against things that don't benefit those profession(s).

However, you're wrong in point of fact. Copyright is an English law thing, a statute law, not a common law. Look up "Statute of Queen Anne". It's from 1710. Patents seem to be a British or Venetian thing. The USA almost didn't have a patent or copyright system, Thomas Jefferson was quite against them. For a long time, the USA allowed immigration on the basis of possessing some skill or patented idea - the USA was an "IP Outlaw". Not too surprisingly, this coincides with the USA's period of industrialization.

"Intellectual Property", the idea that one can own ideas, is just a bad idea, from an economic standpoint.

Patents were originally invented in Venice in the 1400s. They were widely used all over the British Empire well before the US existed.

Copyright law was also largely invented by Britain dating back to when the printing press was invented in the 1600s.

Trademark law is even older dating as far back as the Roman Empire. The first modern Trademark system was actually set up by France.

Your assertion about this stuff being American inventions is wrong.

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

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.

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.


> The UK made nothing to spread it

Have you heard of the British Empire? The UK did quite a lot to spread their legal traditions.

Romans gave world Civil law, Americans gave world IP law. Sad.

It's not true. IP law existed before the American revolution, and the US in fact initially refused to sign the major worldwide convention on IP law (Berne).

So, all the "liberal" judges? Sucks that the ones who usually defend human rights are also the same people who stifle innovation.

Well, the problem is that Aereo probably could not have prevailed at SCOTUS, because SCOTUS looks to precedent. In this case, their interpretation of the precedent itself (Copyright Act of 1976) was accurate, even if that precedent is out of date in our eyes. If you want SCOTUS justices to innovate, you need to challenge the precedents at their fundamental level, or else point to other precedents that should invalidate or challenge them.

Bear in mind that the function of the Supreme Court isn't to propose new laws (legislate); it's to rule on existing laws. By its own mandate, the Supreme Court does not serve an innovative function in government. It serves an examination and arbitration function. If we want to change anything here, we'll have to start in the other branches of government, or else bring a case that sufficiently challenges the Copyright Act.

> Well, the problem is that Aereo probably could not have prevailed at SCOTUS, because SCOTUS looks to precedent. In this case, their interpretation of the precedent itself (Copyright Act of 1976) was accurate, even if that precedent is out of date in our eyes.

You are confusing enactments (things like the Constitution and statute law, like the Copyright Act) with precedent (prior rulings of courts applying the same law). These are fundamentally different things, thought the court looks to both

Sorry, was a misnomer on my part. I was using "precedent" in the broad sense, i.e., to mean a preexisting reference point. But you're quite right in that the term has a very specific legal meaning, and I should have been more mindful of that. (IANAL, and I should probably preface a lot more of my legal discussions with that.)

Nevertheless, I think my point still stands. Court needs to find, sort, and prioritize reference points essentially.

Well said.

Describing Roberts as liberal is a great stretch

Pretty sure he's the one who "saved" Obamacare when it went to Supreme Court.

1. "Obamacare" is an implementation of the Heritage Foundation's[0] health plan from the early 90s. It's "liberal" in the same sense that any Republican can be said to be "liberal."

2. Roberts has a deep and wide judicially conservative record. He cannot be called "liberal" in the context of American politics; it's not even up for debate. The man and his judicial practice is as conservative as they come.

3. I really don't see why it matters. The justices' political leanings have nothing to do with whether or not their decisions are "correct" or not (although it may provide insight into why they decide one way or another).


Doesn't change the fact that other conservative justices (Scalia, Thomas, and so on) voted against it and liberal justices voted for it. So Roberts could be said to be the most liberal of the bunch. The Aereo vote is pretty much the same as Obamacare vote, except Kennedy who is both anti-Obamacare and anti-Aereo.

Well, that 'fact' isn't very factual. The 'conservative' justices dissented from the majority opinion, but that doesn't mean that their rendering would have made Aerio's practices legal.

In a nutshell, the dissent would have also ruled against Aerio, just for a different reason than the majority. This sentence from Scalia's dissent should put things in perspective:

"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."

Describing Obamacare as liberal is a bit of a stretch. - a Canadian

Bear in mind, the U.S. definition of liberal is still far to the right of what the rest of the world considers liberal.

And by the whole world you mean Western Europe and a few other countries. US is very liberal compared to many other places (like my own country).

Can I ask which country that is? It strikes me as odd to hear such a domestic US political rant from someone who doesn't live here. (or maybe you do live here now and are just comparing it to where you're from)

I live in Russia. I try to follow various happenings all around the world, nothing odd about that.

Agree. In India one has to pay exorbitant sums for poor medical care, forget about subsidised, good medical care.

Fair enough.

Obamacare was closely based off Republican proposals in the 90s (including Romney's implementation of it in Massachusetts).

Remember, Obamacare is the health care plan the Republicans proposed after rejecting any kind of single-payer universal plan. That the Republicans subsequently also opposed their own health care proposal speaks more to their basic coherence than their political ideology, per se.

I would not describe Roberts as liberal, per se. However, I would think that someone has got some dirt on him. No way to explain his voting record, otherwise.

All the judges were against it. The three who dissented just didn't agree on the reason.

Everything following this comment is a horrible derail. And would be expected from the plain text of the comment.

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

Under the changes that Congress specifically made to the Copyright act I do believe the court ruled correctly. Congress moved in 1976 to protect broadcasters from Cable companies doing nearly what Aereo is doing, capturing and sending by another means the broadcast of a TV station.

Congress at the time did not like how the courts were ruling in favor of the then fledgling CATV services. Courts ruled that capturing and sending the shows to cable viewers was not a violation as were not acting as "performers". Congress changed that they were, effectively stopping cable from providing local and regional channels. Well Congress showed who was truly doing this by adding in all sorts of new compulsory fees for carrying local channels. So CATV can and in some cases has to carry local content and pay for it.


Congress changes to Copyright in 1976 at the behest of broadcasters versus CableTV is the basis for the ruling. The original broadcaster owns all rights unless otherwise assigned.

That's the problem!

The opinion compares Aereo's use of tiny antennas to cable companies' use of one big one. They argue that since Congress passed a law back in the '70s to define the cable companies' practices as rebroadcast, that law should be read as also defining what Aereo does as rebroadcast.

If that's true, then why is their home page filled with talk about "watch live TV" and not a single word about renting an antenna?

When I look at their offerings, I can immediately see that they're selling a streaming TV service and it just happens to be implemented by receiving radio-frequency broadcasts. Supreme Court justices aren't idiots, and they can probably see that too.

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?

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

That's one version. The other is that you simply watch the show in near-real-time, just as you would if the camera were sitting in your window.

IANAL, but felt like the DVR functionality really clouded the case and possibly skewed it away from Aereo. Harder to claim you are merely an antenna when you are recording, too.

They work like a DVR, you can set a show to record and it will save a copy just for you using your antenna.

(It sucks you got downvoted for asking an earnest question.)

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.

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".

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."

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.

>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.

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

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.

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.

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.

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.

Got it, thanks for the clarification.

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.)

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?

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.

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...

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...

Al Gore probably doesn't share your confidence.

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.

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...

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?

The supreme court is the ultimate court of appeals in the United States - once you lose there, your only remedy is to change the law, or in some cases, change the constitution.

Since the supreme court interprets the law, the way you to change the ruling is to change the law. In a few recent cases, the supreme court has basically said (paraphrasing) "we don't like this ruling, but this is what the law says. If you want to fix it, talk to Congress, not us."

There have been some very notable instances where the Supreme Court has changed its mind or modified its prior rulings (for instance around civil rights), so while its the end of the road for this petitioner, it doesn't bar the law evolving in the future.

In the US the Supreme Court is the final arbiter of how the law is interpreted. So, off the top of my head, there are at least 2 ways the effects of a judgement can be reversed. 1) The law can be specifically amended by congress and 2) the Supreme Court can make a future ruling which is different than it's original.

Of course, there are intricacies here. Especially in case 2 where the weight giving to legal precedence makes it unlikely.

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.

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).

The funny thing about this question is that the Court previously (in the 1970s) did rule in favor of this type of service, at the time known as community antenna TV. Congress then passed a new, revised copyright law that specifically outlawed this type of activity; it was under this law that the Court ruled against Aereo.

So that answers your question about what the next step could be, as well as why the Court ruled the way it did.

Appealing to congress to change the law in question is the only recourse to the losing party.

What exactly do you mean by a “mistaken” ruling?

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


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

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.

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.

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.

Of course you can put an antenna on your roof. You can probably also put an antenna on your neighbor's roof. Your neighbor cannot get into the business of rebroadcasting TV signals, though.

Your intent to figure out exactly where the line is drawn is a failure that geeks have when going about the law. The law isn't written for a robot to unfailingly interpret. You won't get a good answer for the same reason the tribes making headphones out of coconuts won't get a good answer for how exactly they need to wear them for the cargo planes to come back.

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.

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'".

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.

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.

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.

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.

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.

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

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.

I don't think anything is wrong with renting an antenna and streaming the signal. What's illegal here (not that I think it should be, but it seems clear enough that this is what the law says) is providing a streaming TV service without obtaining the appropriate licenses. The implementation details on the backend are irrelevant.

I don't think you'd have any trouble setting up DJB's Internet-Accessible Antenna Rental if that's what you actually offered. Stick some SDR equipment on the antenna and give me access to the raw bitstream. If I want to watch TV with the service, then I can tell your equipment to tune to the appropriate frequency, and then decode the bitstream locally. But if you set up DJB's TV Streaming without paying any license fees, and you just implement that by receiving signals from an antenna, it's a different beast even if it looks the same technologically.

With this ruling renting an antenna will basically never be a valid workaround. The argument is that because Aereo is the one dealing with the antennas, they are the ones doing the broadcasting.

Now, if the equipement were sold instead of rented, and obstensibly Aereo was only providing electricity to the antenna/DVR setup, then things might have been different (at least it was implied in the oral arguments). But obstensibly the service being provided by Aereo was one of broadcasting, not of hardware hosting.

You could say the exact same thing about Cablevision and their 'cloud DVR', but they won their case before the Supreme Court. Aereo was relying on that decision to enable a similarly inefficient system (1 antenna and DVR per subscriber) for broadcast TV.

I agree, and crazy workarounds like that aren't very nice either.

However, I don't think the two decisions are inconsistent. As I understand it, Cablevision was already paying license fees for rebroadcasting, and the case was just about exactly what they could or could not do with that license. Aereo's case is about whether they need to pay license fees at all.

As I understand it, one of their goals was to not be considered a broadcaster. Rather, it's more akin to a wire in that it's one-to-one, not one-to-many.

I am eager to hear some expert commentary on the ruling on what the side effects will be.

Not really. They rented you exclusively an antenna at their location, and you can use it to watch over the air TV. There was no rebroadcasting technically, which is how they hoped to get around the law.

That's the only difference between Aereo and the original CATV companies. Original CATV was one giant antenna on a hill piping the broadcast to homes that couldn't get the signal; this is thousands of antennas intelligently provisioned on a hill piping the broadcast and providing DVR functionality to homes that don't necessarily want to deal with using the crappy tv antenna -> computer hardware available.

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...

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

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.

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... 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.

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

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.

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

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?

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!!!

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.

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


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

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.


..."And we have not considered whether the public performance right is in- fringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content."

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"

Down. Any mirrors?


This is what I see (connecting from the UK):

500 Internal Server Error

The server encountered an unexpected condition which prevented it from fulfilling the request.

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.


    “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

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

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

That's a beautiful attitude.

Barry Diller, a major backer of Aereo, is 72.

HN/reddit ddos'ed ?

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.

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

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