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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
> 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.
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."
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.
yes, it absolutely is - the two issues are inherently coupled.
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.
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?
(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.
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?
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.
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.
That's miles away from "just hiring a tech guy to come over and set up your cable card".
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?
"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.
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.
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.
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.
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.
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.
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.
> 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.
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.
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.
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.
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.
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.
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.
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?
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.
People will pay more for it, so Aereo will charge what they know they can
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.
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.
Then you're fine.
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.
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.
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.
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.
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.
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.
> 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?
Personally, I still think that is dumb and bad.
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.
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.
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.
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.
> 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?
"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.
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.
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.
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).
Aereo is logically the same as a cable company. Cable companies license their content.
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.
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.
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.
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.
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]
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?
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 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."
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.
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.
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.
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.
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.
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).
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?
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.
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 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?
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.