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End of the line for Aereo?
June 25, 2014 7:45 AM   Subscribe

Internet TV/DVR start-up Aereo lost its copyright-infringement case at the Supreme Court today in a 6-3 decision, with Justices Scalia, Thomas, and Alito dissenting. This decision effectively reverses an earlier lower court ruling that found Aereo safely within the law. Although Aereo based its case on the 2008 Cablevision decision, which upheld the legality of cloud-based DVR systems, the majority ruling (PDF) states that "[B]ehind-the-scenes technological differences do not distinguish Aereo’s system from cable systems, which do perform publicly." This decision effectively puts Aereo out of business, given CEO Chet Kanojia's earlier statement that there was "no Plan B" if the Supreme Court ruled against the company. posted by Strange Interlude (151 comments total) 12 users marked this as a favorite

 
The FCC dropped the ball years ago by allowing traditional broadcast stations to charge access fees to cable providers. Next up: manufacturers of rooftop antennas. After all they are selling a product that allows the retransmission of their precious signals.
posted by Gungho at 7:48 AM on June 25 [4 favorites]


I'd have to agree with Thomas, Scalia, and Alito on this. Not something I expected to say today!
posted by Drinky Die at 7:48 AM on June 25 [28 favorites]


Content providers should be paid for their content. Or the level of content will go down, because there won't be any money in it. People think the internet makes everything magic and free. As we are finding out, that's not the case.
posted by Ironmouth at 7:50 AM on June 25 [5 favorites]


Given another recent ruling (can't remember which) I guess this is the second time the stopped clock was right?
posted by symbioid at 7:51 AM on June 25


The FCC dropped the ball years ago by allowing traditional broadcast stations to charge access fees to cable providers. Next up: manufacturers of rooftop antennas. After all they are selling a product that allows the retransmission of their precious signals.

A rooftop TV antenna is a part of a receiving set, not a transmitter.
posted by Ironmouth at 7:51 AM on June 25 [3 favorites]


Broadcast TV has been free/ad supported forever.
posted by Drinky Die at 7:52 AM on June 25 [10 favorites]


Aereo always seemed like one of those weird edge cases skirting the boundaries of the law. It's a bummer, but I can't really say that it's the wrong call. Sometimes stuff I like just isn't legal.
posted by It's Never Lurgi at 7:53 AM on June 25 [2 favorites]


Uhhh - it's already magic and free. It's OTA TV. This service was allowing you to DVR and view OTA TV on a non-TV device, because incredibly rich media conglomerates are still dithering over how to soak you for watching sports on an iPad. This is about control rather than compensation - ad companies gotta pay no matter what screen you view the broadcast on.
posted by Slap*Happy at 7:58 AM on June 25 [22 favorites]


Content providers should be paid for their content.

This has nothing to do with content providers; we're discussing OTA programming that is broadcast in the clear over channels granted to the networks by the FCC for the benefit of citizens. The content providers are paid by advertising.


A rooftop TV antenna is a part of a receiving set, not a transmitter.

At some point, an antenna is connected to a tuner that converts digital signals and transmits that signal to a monitor for display. Sometimes the tuner is built into the tv, sometimes it's a set top box, sometimes it's in another room. At what length does is go from "watching free-to-air TV" to "running a cable company"? Just in my house? In a wire to my garage? Wireless to my yard? Is a slingbox now illegal? Does the FCC now have to add to the warning labels of all TV Tuners that they are only compliant if used within xxx feet of the displaying device?
posted by Freon at 7:59 AM on June 25 [36 favorites]


Broadcast TV has been free/ad supported forever.
posted by Drinky Die at 10:52 AM on June 25 [+] [!]


So why does FOX et al black out cable providers when they fail to negotiate higher retransmission fees? One would think the broadcasters would just be happy to get their signal into so many homes. (seriously, who has an antenna anymore?)
posted by Gungho at 8:00 AM on June 25


how to soak you for watching sports on an iPad.

Yeah, that's the thing about the move to online. A lot of stuff that was "magically" free is going pay to play. I can't listen to the Phillies on my phone, even if I pay MLB. I can listen if I carry a separate radio everywhere which is a pain in the ass. There are two competing interests here, maintaining the local broadcasters monopoly and charging users from outside the blackout area. This leaves me screwed as someone in the local area who wants to listen online. So often it's a "PLEASE TAKE MY MONEY" situation with online rights, going all the way back to before iTunes.

It makes no sense, but it's about greed. Why make some money when you can make more money?
posted by Drinky Die at 8:04 AM on June 25 [5 favorites]


So basically the Supreme Court has decided that the length of the cord between your antenna and the viewing device matters. Antenna on your roof 50 feet away? No problem. Antenna in NY and routed over the Internet? Not ok.
posted by COD at 8:05 AM on June 25 [12 favorites]


//I can't listen to the Phillies on my phone, even if I pay MLB//

Huh? The home / away and Spanish radio feed for every single major league game costs $20 a year from MLB.com.
posted by COD at 8:06 AM on June 25 [2 favorites]


Certainly not Aereo!
posted by symbioid at 8:06 AM on June 25


Gungho: "seriously, who has an antenna anymore?"

*raises hand*
posted by Strange Interlude at 8:06 AM on June 25 [18 favorites]


Uhhh - it's already magic and free. It's OTA TV.

The original mission of Aereo was to provide OTA broadcasts to people who, while living in the OTA channels' broadcast area, nontheless cannot grab the signal, usually because of the tall buildings in a city.
posted by Thorzdad at 8:07 AM on June 25 [9 favorites]


So why does FOX et al black out cable providers when they fail to negotiate higher retransmission fees? One would think thee broadcasters would just be happy to get their signal into so many homes. (seriously, who has an antenna anymore?)

You would think that, but the fact is they do it because they can. Cable providers were using a single antenna per network to multiplex broadcast television to their subscribers, and it was ruled at the time that this was "copying" the networks' output and they had to pay fees to be able to do so.

However, it's three decades later and now Aereo can fit whole arrays of antennas into very small places. It was their contention (and I concur) that each antenna constitutes a "license" for the signals it received to be viewed on one screen at any time, and the distance between the tuner and the display device is irrelevant.

And *I* have an antenna because HDTV is immensely better that one versus the compressed crap the cable/satellite providers pump out.
posted by Freon at 8:07 AM on June 25 [6 favorites]


Broadcast TV has been free/ad supported forever.

True! Or as I am learning because I have to watch the World Cup in Spanish on broadcast "Es cierto!"
posted by srboisvert at 8:08 AM on June 25 [5 favorites]


(seriously, who has an antenna anymore?)

Cord Cutters.
posted by drezdn at 8:09 AM on June 25 [8 favorites]


Right... wrong... All I know is, for me personally, this is a bummer. I like all of my stuff in convenient zeroes and ones and this would have helped.
posted by DirtyOldTown at 8:11 AM on June 25


Huh? The home / away and Spanish radio feed for every single major league game costs $20 a year from MLB.com.

Possibly I confused this with the video blackout rules? Regardless, similar issues apply there so just pretend I said view instead of listen. (Though a lot of the broadcast rights are cable now.)
posted by Drinky Die at 8:12 AM on June 25


Gungho: "seriously, who has an antenna anymore?"

*raises hand*


I not only have an antenna, I'm considering my next one.

The gouging that these effective monopolies pushes anyone that audits absurd recurring costs this direction. The decision is incredibly obvious, especially when you consider just how shitty the product they sell is.
posted by mcstayinskool at 8:13 AM on June 25 [6 favorites]


(seriously, who has an antenna anymore?)

If you have a clear view to the transmitter there's no reason not to.
posted by maledictory at 8:13 AM on June 25 [2 favorites]


Beyond Aereo itself the concerning thing here, as far as I can tell, is that Breyer's opinion comes out and says that the underlying technology doesn't matter – that because Aereo serves up the same user experience as a cable company, they're a cable company for copyright purposes. That has huge implications for copyright grey areas where server-side tech methods are employed to prevent “technical” violations – things like cloud storage sites that don't de-duplicate users' files. But then he says that this ruling doesn't reach those other technologies, because he says so. That's perfectly clear and will have no unintended consequences, I'm sure.
posted by Holy Zarquon's Singing Fish at 8:13 AM on June 25 [16 favorites]


So basically the Supreme Court has decided that the length of the cord between your antenna and the viewing device matters. Antenna on your roof 50 feet away? No problem. Antenna in NY and routed over the Internet? Not ok.

I quoted this over at HN discussion as well, but it'd be helpful to actually read the ruling because they say pretty clearly that Aereo is being viewed as a cable company because they've marketed and designed their service to be that of a cable company:
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.
Basically Aereo's technological loophole didn't override a common-sense understanding of the service they were providing. The ruling seems to leave open the question of whether a technologically similar service that was designed/presented/marketed differently would be legal - and to me suggests that it absolutely could be.
posted by crayz at 8:15 AM on June 25 [3 favorites]


...seriously, who has an antenna anymore?

Ummm...People who enjoy full-HD viewing, as opposed to the down-sampled re-transmission offered by the likes of Comcast? People who enjoy live sports in full-HD?
posted by Thorzdad at 8:16 AM on June 25 [7 favorites]


So basically the Supreme Court has decided that the length of the cord between your antenna and the viewing device matters. Antenna on your roof 50 feet away? No problem. Antenna in NY and routed over the Internet? Not ok.
I think the problem is that Aereo owns the antennae. If one company were to rent out a 12"x12"x12" physical space with an internet connection and good reception from antennaes, that would probably be OK. Customers could then buy an antennae and time-shifting hardware and software, from a different company than the one serving as colo/ISP, and install it in the ISP space. Maybe?

Copyright law is so fucked right now. IP is important stuff, but the current situation has been fucked all to hell by Congress' laws post-Disney.

I'm having a lot of trouble understanding the broadcasters' motivations too. Do they get better monetization by limiting their audience? How much more do they get from cable companies than from advertisers?
posted by Llama-Lime at 8:17 AM on June 25


If this case had gone the other way, couldn't the big networks have just stopped broadcasting and become cable companies? Sure they'd lose some OTA viewers but that must be better than losing retransmission fees.
posted by mullacc at 8:18 AM on June 25


It makes no sense, but it's about greed. Why make some money when you can make more money?

I agree, and that's why I wish the techno-libertarian revolution was motivating people to demand changes to our outdated and arcane laws and regulations as opposed to creating Yet Another App to Get Around Them.

Stuff like Aereo and, let's face it, whatever they eventually pull off via legislation or court ruling to hobble Uber, are just examples of what I see as a very lazy flaw in these visions for dealing with outdated laws. It's like painting over a house because that's easier than replacing the rust-covered siding. Roberts literally pointed out in his first question why Aereo was going to lose: their model was, and I quote, "solely based on circumventing legal prohibitions you don’t want to comply with."

It doesn't matter, legally, that those prohibitions suck. They exist. And I wish there were tech-sector investors willing to put $15 million into lobbying for changing them, but they'd rather try to invest in potential killer apps because duh. But then this is what happens. If the ongoing legal argument is going to continue to be "this should be legal because it's cool and cheap and I like it," then we are going to continued to be screwed.
posted by XQUZYPHYR at 8:19 AM on June 25 [13 favorites]


If one company were to rent out a 12"x12"x12" physical space with an internet connection and good reception from antennaes, that would probably be OK.

I'm pretty sure that's exactly what Aereo does did.
posted by mullacc at 8:19 AM on June 25 [4 favorites]


If this case had gone the other way, couldn't the big networks have just stopped broadcasting and become cable companies? Sure they'd lose some OTA viewers but that must be better than losing retransmission fees.

They openly threatened to do so.
posted by Holy Zarquon's Singing Fish at 8:19 AM on June 25 [1 favorite]


This is a terrible decision. Aereo is not in the content business nor the television business. Aereo is in the antenna rental business.
posted by jbickers at 8:19 AM on June 25 [4 favorites]


If this case had gone the other way, couldn't the big networks have just stopped broadcasting and become cable companies?

I believe Fox, among others, actually suggested they would do exactly this.
posted by XQUZYPHYR at 8:19 AM on June 25


Even the dissent argues that Aereo is infringing (secondarily) and that what it does "ought not be allowed," but that the Court's argument stinks.
posted by uncleozzy at 8:21 AM on June 25 [1 favorite]


~couldn't the big networks have just stopped broadcasting and become cable companies?I believe

~Fox, among others, actually suggested they would do exactly this.


Other than the main FOX Television network, FOX practically is an all-cable conglomerate. It would be easy-peasey for them to go all-cable, though that move would leave thousands of local affiliate stations in the lurch.

And, of course, there's the NBC conglomerate, owned by Comcast itself.
posted by Thorzdad at 8:26 AM on June 25 [2 favorites]


I used to happily pay the cable company for the OTA channels over their coax cable "in the clear". This was mandated by the FCC, and required the cable companies to both provide the OTA channels at a nominal fee and to provide them unencrypted. It was great, and I used MythTV with it as a DVR and effectively had all I wanted in a TV setup, being charged at a reasonable rate for a service (an ad-supported service I might add).

Then, the FCC fucked that up, as this inbred not-really-a-regulatory-agency regulatory agency, staffed by former Telecom and Cable lobbyists, is wont to do. Consider that in this case they were opting to deregulate something which in turn helps the cable companies, and in the Aereo case they are opting to regulate something which in turn helps the cable companies. What's similar about those two?

Comcast took a couple years to finally cut the clear QAM signal to my house, but one day poof gone. No recourse, other than the "opportunity" to have a Comcast settop box to unencrypt the signal.

So now it's an OTA antenna. If that drops someday, I'll just do without television.

executive summary: absolute power corrupts absolutely.
posted by mcstayinskool at 8:26 AM on June 25 [10 favorites]


seriously, who has an antenna anymore?

I've got rabbit ears, if that's what you mean. Never had cable. I happily pay Netflix for streaming, but I'll be goddamned if networks/cable companies ever get dime one out of me.
posted by Alvy Ampersand at 8:27 AM on June 25 [3 favorites]


Just bought an HD antenna. Quality is better, selection is sufficient. I doubt I'll pay for cable ever again.
posted by blue_beetle at 8:30 AM on June 25


Possibly I confused this with the video blackout rules? Regardless, similar issues apply there so just pretend I said view instead of listen. (Though a lot of the broadcast rights are cable now.)

That is exactly it.

MLB Gameday Audio is extremely friendly -- $20/year gets you home, away and Spanish radio feeds for 99% of all games no matter where you are or what your home market is. (I believe there are very few exceptions for certain nationally-televised games but I've never run into a problem.) This includes spring training, where available, and playoff games.

MLB.TV is extremely UNfriendly. Even if you pay for full access, your local team is blacked out, and their definition of 'local' is EXTREMELY overbroad. For instance, I travel to central Pennsylvania quite a bit, and thought to myself 'perhaps out there I can watch Phillies games on MLB.TV since it's 100+ miles away.' Nope -- instead of blacking out the Phillies as my normal location does, central PA gets blacked out of the Phillies, the Pirates, the Mets, the Yankees and I believe the Orioles as well. Map of the chaos.
posted by delfin at 8:30 AM on June 25 [6 favorites]


This is a terrible decision. Aereo is not in the content business nor the television business. Aereo is in the antenna rental business.

It's really not a terrible decision. The core question here is whether you can use technology to try to open a loophole in the law when you're blatantly violating its intent, and the court found that you cannot.

If I market myself as "come hire a hitman to kill your spouse" and everyone is using my site to hire hitmen to kill their spouses but then I say no I'm just offering a generic technology platform for a peer-to-peer encrypted marketplace ... are we really this stupid?

I agree, and that's why I wish the techno-libertarian revolution was motivating people to demand changes to our outdated and arcane laws and regulations as opposed to creating Yet Another App to Get Around Them.

Exactly. What did people expect, SCOTUS to be like "oh we're such doddering old people, our laws stand no match to this technological wizardy." Breyer actually says SCOTUS tried to interpret the Copyright Act such that rebroadcasting like Aereo would be legal until 1976 when Congress amended the act to very explicitly make clear that it was not legal.

If you want to change the laws of this country, the Supreme Court isn't where you do that.
posted by crayz at 8:31 AM on June 25 [8 favorites]


I used Aereo for several stretches. Found it very helpful when we were unable to get antenna signal. Too bad.
posted by ThePinkSuperhero at 8:34 AM on June 25 [1 favorite]


I've got rabbit ears, if that's what you mean. Never had cable. I happily pay Netflix for streaming, but I'll be goddamned if networks/cable companies ever get dime one out of me.

This. I just don't watch enough current television to make it worth paying for cable, and literally any antenna will do the job. Some discount stores have a bare-bones one for about $3, and it works fine if you've got a modern TV with an HD tuner.

If you're having trouble getting good reception with your antenna, check out AntennaWeb. You plug in your address and it gives you a map of where your local broadcasters are and where you should point your antenna for best effect. Very useful. Possibly not as useful as Aereo was.
posted by asperity at 8:35 AM on June 25 [1 favorite]


I've been an aereo subscriber for a little over a year. I live in a valley with no reception (antenna gets exactly one channel) and this was a great system for my needs. That said, the whole "tiny-antennae" thing always seemed like a serious BS loop-hole. It was clever, but I'm not surprised the networks went after them.

I was thinking about cancelling aereo lately though, since the service has become very spotty and unreliable. Sound cutting out, poorer video quality, and longer buffering. Basically, no fun.

I figured they had grown very quickly and couldn't keep the service up to par and were unwilling to invest in the needed upgrades while looking down the barrel of gun.

Oh well. Time to sign up with the local cable monopoly.
posted by JBennett at 8:39 AM on June 25


Thorzdad, your guesstimate of the number of Fox stations is on the high side. Wikipedia says they have 17 owned and operated stations and 185 affiliates, so the actual total is not thousands, but more like a couple hundred.

The numbers are similar for NBC (~210), CBS (~216) and ABC (~208). PBS is seen on more than 300 stations, but looks like there are a number of instances where one "affiliate" is seen on multiple stations/frequencies in a given state, so it's a little harder to compare.
posted by Nat "King" Cole Porter Wagoner at 8:48 AM on June 25


I happily pay Netflix for streaming, but I'll be goddamned if networks/cable companies ever get dime one out of me.

Your broadband provider doesn't also sell cable TV?
posted by mullacc at 8:49 AM on June 25


Other than the main FOX Television network, FOX practically is an all-cable conglomerate. It would be easy-peasey for them to go all-cable, though that move would leave thousands of local affiliate stations in the lurch.

All the broadcast networks also have cable channels.

I don't think the affiliates would necessarily be left in the lurch. Fox can sell Fox New York, Fox Los Angeles, Fox Local as separate channels just like FX, Fox News and the regional Fox Sports channels.
posted by mullacc at 8:54 AM on June 25


The unwritten contract that comes with the whole ad-supported-but-otherwise-free broadcast TV model is that the public is allowed to receive and view the content for personal use but is not allowed to rebroadcast, retransmit or otherwise redistribute that content in any form. Broadcasters wouldn't exist otherwise.

Aereo's business model is similar to scanning books from the public library and selling them in ebook form on the internet.
posted by rocket88 at 8:56 AM on June 25


seriously, who has an antenna anymore?

I just put a new one in the attic last month. In addition to the video quality mentioned above, I also get a bunch of subchannels (and one whole channel) that Directv doesn't carry. Plus Directv charges extra for HD.
posted by dirigibleman at 9:00 AM on June 25


And yet Lyft continues to operate. Mindblowing.

Ultimately what has happened in my household at least is... I just don't watch much TV. I follow shows when they finally hit Netflix (if ever) and in general I watch way less television than I used to. So thanks?

A sad casualty of all this is now I stopped watching baseball (and other sports) almost entirely. When I could turn on the tv and get a game over broadcast I would. I'd even watch sports I'm not that into, like hockey or basketball, sometimes. But now being a casual fan is difficult or expensive. As a result I'm no longer buying tickets to the baseball games (because I'm not following the season), no longer buying beers at the stadium, no longer caring really. Sports will absolutely lose fans from this mess, MLB is about to lose me.
posted by 2bucksplus at 9:01 AM on June 25 [5 favorites]


Have the advertisers weighed in on this? Wouldn't they want to be able to reach as many as possible? Maybe they get charged more if more are watching, but isn't that the point, to have as many people see the adverts as possible? If I am Proctor and Gamble or some such huge advertiser, I would be pushing the OTA stations/networks to actually set this up themselves.
posted by 724A at 9:01 AM on June 25 [1 favorite]


How is this any different than internet radio?
posted by Benny Andajetz at 9:02 AM on June 25


Your broadband provider doesn't also sell cable TV?

I don't know if this is supposed to be a "gotcha," and I can't speak for Alvy, but in my instance, no. I have an antenna and watch HD OTA, and get internet from a small local company that is not a major telco or a cable provider.

I won't say it's easy, but in a lot of urban areas, it is at least possible to avoid cable companies if you despise their business practices, and still live a reasonably normal media life.
posted by Joey Buttafoucault at 9:03 AM on June 25


So, I can use Aereo to access pay cable TV, not just OTA? Don't tell me it appears to be the same, because it isn't, since I can't expressly get CABLE/SATELLITE EXCLUSIVE content!

What this boils down to is that rentierism of imaginary property is more important in the legal system than rentierism of actual physical property. And in fact, LESS rentierism for aereo, as there needs to be physical hardware for each and every thing, whereas virtual duplication is low-cost compared to physical hardware, so they gain more via rentierism in the virtual space, which means innovation is stifled at the expense of IP protection. Completely the opposite of intent of the founders when it came to copyright and patents.
posted by symbioid at 9:04 AM on June 25 [1 favorite]


It's really not a terrible decision. The core question here is whether you can use technology to try to open a loophole in the law when you're blatantly violating its intent, and the court found that you cannot.

I fail to see any violation of "intent". I have a right to OTA content. My antenna/location is insufficient to exercise my right, so I hire someone with a stronger antenna to fulfill my right.
posted by Benny Andajetz at 9:05 AM on June 25 [9 favorites]


Wouldn't they want to be able to reach as many as possible?

If you listen to a lot of streaming radio, the local ads are often replaced with Ad Council stuff to fill time because they aren't running the same ads they do over the air. Something about the arrangement between the broadcaster and the people they sell advertising to. The broadcaster might want to raise prices for the additional listeners and the advertiser might not want to buy that time because they don't know as much about who is listening. If you are a local advertiser, for example, do you care if someone on the other side of the country is hearing your ad?
posted by Drinky Die at 9:05 AM on June 25


Your broadband provider doesn't also sell cable TV?

Sadly it does, and sadlier, I believe Bell - one of Canada's communication conglomerates - owns a chunk of it. It was a crown corporation up until 20 years ago; in my mind, I still think of it as a public utility.

I should amend my previous statement to "I'll be goddamned if they get a dime above the absolute minimum I can pay them".
posted by Alvy Ampersand at 9:10 AM on June 25 [2 favorites]


Ironmouth: "Content providers should be paid for their content. Or the level of content will go down, because there won't be any money in it. People think the internet makes everything magic and free. As we are finding out, that's not the case."

A) this doesn't quite hold in the case of advertising driven content. You want a wide distribution of your content. Magazines, for example, rarely charge money because they want the profits more than circulation. They charge money because their advertisers believe it signals that you're the kind of person who's willing to pay for access to the magazine content. In this regard, the chief problem with Aereo is that they're not tracked by Nielson.

B) Given the number of monopolies offered to content creation and distribution, where's the evidence that we aren't currently facing a surplus? You know, the old saying '200 channels and still nothing to watch'.

A and B combine in some unexpected ways: most cable channels would likely but for Disney's policy of bundling ESPN, a very popular channel, with them. Partially because they'd be denied subscription revenue, but mostly because they'd be out the chance to be in front of millions of ESPN subscribers.
posted by pwnguin at 9:12 AM on June 25 [2 favorites]


I don't know if this is supposed to be a "gotcha," and I can't speak for Alvy, but in my instance, no.

Wasn't meant to be a "gotcha"--I was curious if a residential broadband provider that is good enough for a decent Netflix experience didn't also use their pipes for TV. Seems like not doing so is leaving a lot of money on the table.
posted by mullacc at 9:17 AM on June 25


.

I had it here in SLC and though I only used it occasionally, the service worked well and I liked the notion of what seemed like a clever hack.
posted by zuhl at 9:17 AM on June 25


Also, the antenna signal holds up much better in heavy rain than the satellite signal.
posted by dirigibleman at 9:20 AM on June 25


Broadcast TV has been free/ad supported forever.

Ad supported is not free. If the network loses some business because someone else is flat out stealing their content and selling ads on it they will have less money to make shows. This is basic econ
posted by Ironmouth at 9:30 AM on June 25


this doesn't quite hold in the case of advertising driven content. You want a wide distribution of your content. Magazines, for example, rarely charge money because they want the profits more than circulation. They charge money because their advertisers believe it signals that you're the kind of person who's willing to pay for access to the magazine content. In this regard, the chief problem with Aereo is that they're not tracked by Nielson

You confuse the economic interests of the advertisers with those of the networks. The advertisers don't care who runs the ads they are selling. The networks very much so.

Whatever happened to the people who make something should get paid for it and the people who aren't making it shouldn't get to steal it to make money off it?
posted by Ironmouth at 9:33 AM on June 25 [2 favorites]


And yet Lyft continues to operate. Mindblowing.

Lyft provides the "content" of the ride. These people steal other people's content and then sell advertising on top of it. Its like having to pay some random dude for your Lyft ride.
posted by Ironmouth at 9:36 AM on June 25


Why do you think that grabbing FREELY AVAILABLE OVER THE AIR content if I have an antenna is somehow "stealing" it?

Using your logic, the TV stations/content producers should demand a portion of every single antenna made and sold.
posted by symbioid at 9:36 AM on June 25 [5 favorites]


Whatever happened to the people who make something should get paid for it and the people who aren't making it shouldn't get to steal it to make money off it?

Off the top of my head, the same place where broadcast bandwidth being a limited resource owned by The People and with the privilege of being able to use that bandwidth being wholly controlled by The People -- for their own self interest (The Peoples') and not those of the licensees.

In other words, there's no "Right to Broadcast For Profit".
posted by mikelieman at 9:36 AM on June 25 [9 favorites]


someone else is flat out stealing their content and selling ads on it

Is this what Aereo was doing?
posted by bradf at 9:37 AM on June 25


Sorry - didn't mean to yell there. :\
posted by symbioid at 9:37 AM on June 25


Why do you think that grabbing FREELY AVAILABLE OVER THE AIR content if I have an antenna is somehow "stealing" it?

Don't engage him on that. He has been through tons of these IP conversations and knows it's a derail, he does it anyway because that's what he wants.
posted by Drinky Die at 9:39 AM on June 25 [7 favorites]


At first description I thought this was just a DVR box with an antenna on it, and was ready to be pretty upset about the ruling. With the reality of the situation, I'm not sure how I feel.
posted by vibratory manner of working at 9:42 AM on June 25


Why do you think that grabbing FREELY AVAILABLE OVER THE AIR content if I have an antenna is somehow "stealing" it?

Using your logic, the TV stations/content producers should demand a portion of every single antenna made and sold.


Its available to you freely over the air because you are the product being sold to advertisers. The network wants to sell their access to you because of the content they produce to advertisers. If someone else takes that from them and packages their own ads on top, the content producers aren't getting paid because advertisers will pay the on-line company, not the content company. If the content company isn't making a profit, they aren't going to make content anymore, are they.

Technology doesn't change basic economics. You have to pay for content. You are now, because your time in front of the tube is being sold to someone.

Sorry - didn't mean to yell there. :\

NO PROBLEM!!!!!
posted by Ironmouth at 9:42 AM on June 25


The unwritten contract that comes with the whole ad-supported-but-otherwise-free broadcast TV model is that the public is allowed to receive and view the content for personal use but is not allowed to rebroadcast, retransmit or otherwise redistribute that content in any form. Broadcasters wouldn't exist otherwise.

First, that contract is written. Congress wrote it down in 1976 when it created the whole retransmission consent scheme.

But beyond that, why? My understanding is that Canada has no such prohibition against retransmission. Yet our friends to the north still have TV broadcasters.

Fundamentally, the issue seems pretty much like the exact opposite of the whole net neutrality debate (ironically, given that most of the belligerents on one side of that debate are on the other side here). Broadcasters and their affiliates have, for many years, transmitted their signals free and clear into the public airwaves in the hope that people receive them and watch their delicious advertising. Cable companies came along and scooped up those signals, retransmitting them to a larger audience who didn't, for one reason or another, receive them. This system worked so perfectly that broadcasters, much like the ISPs, realized they could play both sides of the market and demand that the cable companies pay them for the privilege of retransmitting their signals.

The FCC and Congress went along with this as though it makes all the sense in the world. But why? Is there really a good argument beyond greed why someone should have to pay to retransmit, in its entirety and in its local market, a freely broadcast signal on the public airwaves? If you don't want people to make use of your signal, then don't buy a massive transmitter. You shouldn't get to transmit on the public air and then demand payment when people try to make use of what you put out.

An Ironmouth, nobody is saying you should have the right to substitute your own ads into the signal any more than I have the right to climb up a nearby billboard and substitute my own ad without paying the billboard company. That's a straw man.
posted by zachlipton at 9:46 AM on June 25 [6 favorites]


Was Aereo changing ads or not?
posted by Pruitt-Igoe at 9:47 AM on June 25 [2 favorites]


If someone else takes that from them and packages their own ads on top

Again, who is doing that? That's not the issue here.
posted by zachlipton at 9:47 AM on June 25 [5 favorites]


If Aereo had won, wouldn't Congress just change the laws like the last time retransmission came up and the SCOTUS decided in a way they didn't like?
posted by smackfu at 9:48 AM on June 25


I fail to see any violation of "intent". I have a right to OTA content. My antenna/location is insufficient to exercise my right, so I hire someone with a stronger antenna to fulfill my right.

Yeah but that's not what Aereo's model was. They weren't serving just people in a service area with bad reception. Who knows - that might have been defensible.


I can't believe this is a surprise to people or that you take issue with this unless you take issue with retransmission fees.

We have laws that say that OTA stations can demand pay tv companies pay them for the content they provide. Aereo was a pay tv company. The only difference was that your local cable provider gets their signal once and sends it many places, while aereo gets the signal many times and sends it many places.

If you want to take issue with retransmission fees by all means go for it, but thats the only argument for Aereo.
posted by JPD at 9:49 AM on June 25


Broadcasters, advertisers watch Aereo case closely
Low power stations aren’t typically carried on cable or satellite services, and when they are, they still don’t reap the rewards of retransmission fees like the bigger players. In their view, Aereo streaming content that originates from low power stations could actually mean more eyeballs, and potentially more ad revenue, at the local level.

“I am hoping that Aereo wins,” said Gary Cocola, president and founder of Cocola Broadcasting Companies. “I can’t get all my signals picked up on cable, as my stations take up too much bandwidth for the cable and satellite guys.”

Fresno, Calif.-based Cocola is one of several broadcasting companies in the U.S. that own low power stations, which require users to have an antenna to receive the signals.

“I have 53 streams of video in Fresno through the low power stations,” Cocola told Fortune. “The best thing that could ever happen to me is that Aereo picks up the signal in Fresno. Rabbit ears don’t work well for low power TV and you really need an external roof antenna. For those in apartments, this isn’t an option.”
posted by cjelli at 9:50 AM on June 25 [5 favorites]




I fail to see any violation of "intent". I have a right to OTA content. My antenna/location is insufficient to exercise my right, so I hire someone with a stronger antenna to fulfill my right.

Which part of the Constitution enshrines this right?

You don't have a right to OTA TV. Someone is giving it to you for free on condition that you do not rebroadcast it, and that you watch their ads.

the problem is that when people themselves are the product, they don't realize they are being sold. And with the internet, there's this assumption that the internet itself has made it free. It never made anything free, ever. You pay for it. Like you pay for food, or gas.
posted by Ironmouth at 10:04 AM on June 25 [1 favorite]


If you want to take issue with retransmission fees by all means go for it, but thats the only argument for Aereo.

Yeah, I think the Aereo case really does point out how wacky retransmission fees are. That was the whole point of cable aka "CATV"—community antenna tv—in the first place; the cable company was providing some hardware in the service of making broadcast tv available to customers, and deserved some profit for that effort. Why the original broadcaster deserves to be compensated for cable viewers in a way that it's not for OTA viewers is just beyond me. It seems like if this same decision had been made back when cable first appeared, it too would have been dead.
posted by kiltedtaco at 10:04 AM on June 25


Ironmouth, you know Aereo isn't messing with the broadcasters' ads. You know it only streams within the home markets of the broadcasts it received, so it doesn't send people out-of-market ads. Stop the goddamn derails.
posted by Holy Zarquon's Singing Fish at 10:06 AM on June 25 [11 favorites]


You don't have a right to OTA TV. Someone is giving it to you for free on condition ...

That we allow them the spectrum.
posted by ChurchHatesTucker at 10:07 AM on June 25 [15 favorites]


That we allow them the spectrum.

I think the service obligation went out the window along with "must carry" rules
posted by JPD at 10:12 AM on June 25


Liked this from Scalia, via ChurchHatesTucker's link:

We came within one vote of declaring the VCR contraband 30 years ago in Sony.... The dissent in that case was driven in part by the plaintiffs’ prediction that VCR technology would wreak all manner of havoc in the television and movie industries. ... (arguing that VCRs “directly threatened” the bottom line of “[e]very broadcaster”).

The Networks make similarly dire predictions about Aereo. We are told that nothing less than “the very existence of broadcast television as we know it” is at stake. .... Aereo and its amici dispute those forecasts and make a few of their own, suggesting that a decision in the Networks’ favor will stifle technological innovation and imperil billions of dollars of investments in cloud-storage services. We are in no position to judge the validity of those self-interested claims or to foresee the path of future technological development.... Hence, the proper course is not to bend and twist the Act’s terms in an effort to produce a just outcome, but to apply the law as it stands and leave to Congress the task of deciding whether the Copyright Act needs an upgrade.

posted by Drinky Die at 10:14 AM on June 25 [3 favorites]


There's absolutely zero question this was the right decision with the laws as they are. None at all, and this is what's frustrating in discussing the law online. People here are arguing how they feel the law should be rather than how the law is.

Congress specifically changed the copyright law in 1976 to outlaw this when question arose over what a "public performance" was in reaction to what the cable companies were doing at the time. Congress defined "public performance to mean (from SCOTUSBlog) “to transmit . . . a performance . . . to the public, by means of any device or process, whether the members of the public . . . receive it in the same place or in separate places and at the same time or at different times.” The 1976 law also defined “transmit” broadly: “to communicate . . . by any device or process” – which includes technology that had not yet been developed – “whereby images or sounds are received beyond the place from which they are sent.”

Breyer is 100% right in saying the technology doesn't matter if Aereo is doing something that was already outlawed. This is exactly the problem with the modern tech mindset: THE INTERNET is not a magical thing that transcends law. Things that are illegal offline are still illegal online.

Now whether they should be is a different story. If you feel the law is bad as it is written, that's fine. But the law as it stands now is clear, and it's bizarre that Aereo thought otherwise when they tried to make the same arguments that Congress specifically precluded the cable companies from making 40 years ago.
posted by Sangermaine at 10:19 AM on June 25 [5 favorites]


Was Aereo changing ads or not?

No. The content you streamed from Aereo was identical to what you'd see if you were watching on a portable over-the-air TV, while sitting next to the Aereo antennas.

It's also worth noting that Aereo did go to some length to make sure you could only sign up for channels that you should be able to receive at home. If you live in San Francisco, you can't use Aereo to receive channels from NYC.

Imagine this: I live in a hilly urban environment. With an antenna on my roof, I can receive say 30 channels, but because of a hill, an in-the-way building and the laws of physics, I can't receive my local Fox affiliate, even though their transmitter is 15 miles away. This means I can't get most NFC football games -- although my physical location makes it clear that I'm "authorized" to receive that content over the air.

I have some options:

1) install a slingbox in my downtown office, which receives everything, and streams it to me at home. Depending on how I set it up, it might relay that signal across servers owned by slingbox. This is legal... but unless you're the boss, your IT department won't let you do it.

2) pay a friend of mine $5 a month to put my slingbox in his house. This is in a legal grey area. Also, my friend's kid has a habit of running bittorrent and killing the outbound bandwidth, usually at crucial parts of live sporting events.

3) pay Aereo $8 a month to do this in bulk, and (hopefully) without the kid-using-bittorrent problem. This is illegal.

The net effect is the same, despite the change in legality: I can watch a channel that I should be already able to receive, because I've "moved the antenna" and used the internet as a very long antenna cable. The ads I see are exactly the same -- nobody is changing the content in any way. The metaphor of "renting an antenna in a nearby better location" is apt.

Currently the laws say that if you're doing this commercially (the way Aereo was), then you're subject to retransmission fees. Those laws may be flat-out wrong, but Aereo's "hundreds of micro antennas" was clearly designed to circumvent a loophole (and push the "renting an antenna" concept to a wacky extreme).

Now if only Congress were competent enough to upgrade the Copyright Act, but I fear that any changes that were made there would be even more pro-broadcaster/anti-consumer (if it were even possible in this gridlocked state of affairs).
posted by toxic at 10:20 AM on June 25 [6 favorites]


There's absolutely zero question this was the right decision with the laws as they are. None at all, and this is what's frustrating in discussing the law online. People here are arguing how they feel the law should be rather than how the law is.

No, I think they are saying they broadly agree with the analysis of three Supreme Court justices who dissented with the decision and the previous federal courts that sided with Aereo as well. It certainly was a legal question.
posted by Drinky Die at 10:26 AM on June 25 [4 favorites]


People here are arguing how they feel the law should be rather than how the law is.

I largely agree, but I think this is symptomatic of the public's view in general that the supreme court is a venue where issues are decided on their merits, rather than in congress where they are decided by NBCComcastUniversalTimeAT&TWarnerDisney.

The court doesn't see it this way and instead opts to stick with applying laws that congress has already written. It's probably the correct choice, but it can seem disappointing at times.
posted by kiltedtaco at 10:37 AM on June 25 [1 favorite]


One other reason for watching broadcast tv is that it is about 4 seconds faster than cable. I live near a sports bar and watch broadcast so I always knew when the Blackhawks scored and could predict a cheer from the bar a few seconds later.

I was thinking of trolling the bar with an air horn to piss them off. Maybe next year!
posted by srboisvert at 10:42 AM on June 25 [4 favorites]


No, I think they are saying they broadly agree with the analysis of three Supreme Court justices who dissented with the decision

The dissent agreed it was probably illegal, just disagreed as to how.
posted by JPD at 10:51 AM on June 25


I was thinking of trolling the bar with an air horn to piss them off. Maybe next year!

You better hope the mullacc v. Trolls case doesn't gain any steam.
posted by mullacc at 10:53 AM on June 25 [2 favorites]


Was Aereo changing ads or not?

No. The content you streamed from Aereo was identical to what you'd see if you were watching on a portable over-the-air TV, while sitting next to the Aereo antennas.


I don't know why we're on this derail - but cable companies don't insert ads into OTA TV either. Its not relevant to the case at hand.
posted by JPD at 10:53 AM on June 25


In a sane world, the Broadcasters would be paying retransmission fees to Aero, for providing this service to the people they're supposed to be covering.
posted by ChurchHatesTucker at 10:53 AM on June 25 [3 favorites]


I don't know why we're on this derail

I think we are on this derail because, among other things, Ironmouth accused Aereo of "stealing [the networks'] content and selling ads on it" without offering any evidence that Aereo was in fact doing that.

This is the first time I have heard that accusation, and I've followed the case moderately closely.
posted by Juffo-Wup at 10:58 AM on June 25 [5 favorites]


[Maybe we can set aside the ad-selling issue, if that's not part of this case? Ironmouth, it seems like maybe you're grinding an axe in here that doesn't belong. Everybody else, maybe just let that drop.]
posted by LobsterMitten at 11:02 AM on June 25 [3 favorites]




The dissent agreed it was probably illegal, just disagreed as to how.

Scalia seemed pretty willing to punt it to Congress, as least based on what I just quoted.
posted by Drinky Die at 11:16 AM on June 25 [1 favorite]


I think that's probably a fair characterization of both sides though.

You said "No, I think they are saying they broadly agree with the analysis of three Supreme Court justices who dissented with the decision and the previous federal courts that sided with Aereo as well. It certainly was a legal question."

But the dissent still says that Aereo is problematic and probably not legal. Just that the legalistic arguments put forth by the plaintiffs are not correct. That's very different from saying Aereo is legal.

I mean - come on- the company is pretty open that it was created to take advantage of a loophole.
Loopholes are bad. Even if in this case its a loophole in a law that might be a bad law.
posted by JPD at 11:25 AM on June 25




As far as I'm aware "taking advantage of a loophole" is just another way of saying they did something legal. If spirit of a law is being violated, then you have to change the law if you want to shut down the loophole.
posted by Drinky Die at 11:29 AM on June 25 [8 favorites]


Remind me to repost that comment in the next tax shelter thread.
posted by JPD at 11:39 AM on June 25 [5 favorites]


Or the next mortgage fraud "why aren't more banksters in jail" thread.
posted by JPD at 11:40 AM on June 25 [3 favorites]


Scalia seemed pretty willing to punt it to Congress, as least based on what I just quoted.

I think it's slightly more complicated than that -- but I'm not a lawyer, so: on the issue of public performance, yes, he thinks Aereo is legally fine. But he also goes out of his way to note that Aereo may likely be breaking other copyright laws, and he suggests that if the other issues were put to a lower court Aereo would likely lose because, even if they've found a legal loophole on this issue, they may not have on others. From pages 6 & 7 of the dissent:
Aereo does not “perform” for the sole and simple reason that it does not make the choice of content. And because Aereo does not perform, it cannot be held directly liable for infringing the Networks’ public-performance right. That conclusion does not necessarily mean that Aereo’s service complies with the Copyright Act. Quite the contrary. The Network's complaint alleges that Aereo is directly and secondarily liable for infringing their public performance rights and also their reproduction rights. Their request for a preliminary injunction -- the only issue before this court -- is based exclusively on the direct-liability portion of the public-performance claim...Affirming the judgement below would merely return this case to the lower courts for consideration of the Network's remaining claims.
posted by cjelli at 11:43 AM on June 25 [1 favorite]


If spirit of a law is being violated

The deal here tho is that I don't think Aero is violating the spirit of the law, any more than home video recording or DVRs were violating the spirit of the law. It was a way of integrating television with personal computing devices - they weren't removing or supplanting ads or changing the broadcast itself. They were renting a local antenna and a DVR with internet access to their users. They put access restrictions in place that limited the service just to this use-case. Broadcasters and cable/sat companies didn't like it, because it made OTA television compelling and useful for consumers again - broadcasters would lose their (un-earned) extra slice, and cable/sat companies would lose their consumer lock-in.

That's all this amounts to. Rent-seeking at the expense of the American consumer - this court isn't going to go against entrenched corporate interests. It's not any kind of moral or just decision, just business-as-usual law.
posted by Slap*Happy at 11:50 AM on June 25 [9 favorites]


Remind me to repost that comment in the next tax shelter thread.
posted by JPD at 2:39 PM on June 25 [+] [!]

Or the next mortgage fraud "why aren't more banksters in jail" thread.
posted by JPD at 2:40 PM on June 25 [1 favorite +] [!]

Heh, I was going to reference those same issues in support of my point but I figured it might go deraily. :P
posted by Drinky Die at 11:58 AM on June 25 [1 favorite]


The deal here tho is that I don't think Aero is violating the spirit of the law, any more than home video recording or DVRs were violating the spirit of the law. It was a way of integrating television with personal computing devices - they weren't removing or supplanting ads or changing the broadcast itself. They were renting a local antenna and a DVR with internet access to their users. They put access restrictions in place that limited the service just to this use-case. Broadcasters and cable/sat companies didn't like it, because it made OTA television compelling and useful for consumers again - broadcasters would lose their (un-earned) extra slice, and cable/sat companies would lose their consumer lock-in.

That's all this amounts to. Rent-seeking at the expense of the American consumer - this court isn't going to go against entrenched corporate interests. It's not any kind of moral or just decision, just business-as-usual law.


You can agree with all this and yet agree with the decision - I do. This is an argument against the retransmission rules, not a defense of Aereo.

If Aereo knew what they were doing wasn't a violation of the spirit of the law would they have come up with the verkakte antenna thing. In what universe would that make sense?

The logic is: Pay TV companies that redistribute content from OTA broadcasters need to get permission. Aereo is a Pay TV company. Therefore they need to get permission.

That's what the court was ruling on. That's it. Not the legality of retransmission fees.
posted by JPD at 12:04 PM on June 25


If Aereo knew what they were doing wasn't a violation of the spirit of the law would they have come up with the verkakte antenna thing. In what universe would that make sense?

The reason they came up with the antenna thing is because the Second Circuit said, with a bit more flowery language, “if you do this antenna thing it's not a retransmission.”
posted by Holy Zarquon's Singing Fish at 12:08 PM on June 25 [2 favorites]


The reason they came up with the antenna thing is because the Second Circuit said, with a bit more flowery language, “if you do this antenna thing it's not a retransmission.”

That's sort of playing a little loose with what happened no? The second circuit decision was that a cloud based DVR and a drive based DVR are fundamentally the same thing. Aereo decided that they could use this as a loophole to allow them to launch their service. The second circuit never said Aereo's specific business model was legit before Aereo launched it.
posted by JPD at 12:28 PM on June 25


That's sort of playing a little loose with what happened no? The second circuit decision was that a cloud based DVR and a drive based DVR are fundamentally the same thing. Aereo decided that they could use this as a loophole to allow them to launch their service. The second circuit never said Aereo's specific business model was legit before Aereo launched it.

And they didn't say cloud based DVRs were legit before they were launched.

Areo (apparently stupidly) thought that actual antennas were equivalent to, um, actual antennas.

Forget about Areo, the innovation tax that these cases create is immense.
posted by ChurchHatesTucker at 12:36 PM on June 25 [5 favorites]


no because the difference was that in Cablevision, Cablevision already had permission to retransmit the content being recorded to the cloud.

And I struggle to see where the "innovation" was going on here. This is just a straight end run around some laws to make a buck. Which - hey go for it. But don't cry when you get caught.
posted by JPD at 12:39 PM on June 25 [1 favorite]


Wow, the level of stupid in this thread is almost as high as it was in the decision. Either Cablevision was decided wrongly or this one was. In Cablevision, the Court found that paying someone to provide you a service that involves fair use copying of a third party's content is legal, so long as the copy is made at the direction of the individual subscriber and their content is not merged with any other subscriber's content. They said, in effect, it doesn't matter whether your DVR is in your living room, on the other side of town, or on the other side of the country.

This decision throws that right out on its head. It's directly in conflict with Cablevision. Cablevision is precisely why Aereo thought their setup was perfectly legal. Hell, they even went farther than what Cablevision required. The court allowed Cablevision to use a single physical box for more than one customer, yet somehow having more than one antenna leaves Aereo in a worse position.

Also, Aereo in no way competes with cable companies, at least not in the case of the vast majority of customers who want cable channels in addition to broadcast stations. Nor are/were they a threat to broadcasters, given that they specifically required you to be in the appropriate DMA to subscribe to the service. Never mind that I can receive stations from 4 different DMAs here, had Aereo offered service in my locality, they would only have allowed me to receive the "local" set of stations. Arguments about people across the country seeing local ads is complete bullpucky. That's not how it worked.
posted by wierdo at 12:57 PM on June 25 [6 favorites]


There's absolutely zero question this was the right decision with the laws as they are. None at all, and this is what's frustrating in discussing the law online. People here are arguing how they feel the law should be rather than how the law is.

This is absolutely wrong. There is substantial question about whether the decision is right under the plain language of the Copyright Act, and in fact the Court doesn't claim that it is.

Instead, the Court (apparently) finds that the Act is ambiguous on this point and turns to the legislative history. It notes that Congress added the transmission clause in effort to extend performance rights to cover cable television systems, evidently in response to early Supreme Court precedent holding that cable television transmission was not subject to Act. The Court then holds that Aereo looks kind of like a cable system and we don't want Congress to have to reverse us again, so we'll just close the loophole here and say that the performance right covers them too.

Much as it pains me to say so, Scalia is right here -- there is no logical basis for this in the law, and no way to distinguish, under the majority's "looks like a cable system" test, Aereo from any remote DVR or even any cloud storage system that can or does store video content. As Scalia points out, if you think Aereo is doing something wrong -- and make no mistake, he does -- you can stop that under the well-tested rubric of indirect infringement. You don't need to "torture the copyright law" (his phrase) to make Aereo into a direct infringer.

Anyone who says there is "zero question" about this, though, is either not paying attention or being disingenuous. IAAL. IAAIPL. IANYL.
posted by The Bellman at 12:58 PM on June 25 [7 favorites]


As Scalia points out, if you think Aereo is doing something wrong -- and make no mistake, he does -- you can stop that under the well-tested rubric of indirect infringement.

Was the court limited to only considering Aereo as a direct infringer?
posted by mullacc at 1:08 PM on June 25


In the current proceeding, yes.
posted by Holy Zarquon's Singing Fish at 1:09 PM on June 25


The issue was not the DVR part of Aereo.

The issue was the initial signal capture part. The reason that Cablevision works is that they had the license to rebroadcast the initial signal to their customers, who then received it on a system that they had ownership of (the network DVR). Aereo tried to extend that logic to the initial capture part, saying that since they "leased" microantennae, it was the end user, not Aereo, that received the signal (and thus, no retransmission). It was technological sophistry, and they were called out on it repeatedly at the oral argument.
posted by NoxAeternum at 1:25 PM on June 25


Why Do So Many People Describe Aereo 'Complying' With Copyright Law As The Company 'Circumventing' Copyright Law?

Because a) Cablevision was not binding to SCOTUS, and b) it was pretty clear that they were "complying" by stretching Cablevision to the breaking point.
posted by NoxAeternum at 1:30 PM on June 25


This decision throws that right out on its head. It's directly in conflict with Cablevision. Cablevision is precisely why Aereo thought their setup was perfectly legal. Hell, they even went farther than what Cablevision required. The court allowed Cablevision to use a single physical box for more than one customer, yet somehow having more than one antenna leaves Aereo in a worse position.

"The court" in the Cablevision case was the 2nd Circuit. It is not binding on the Supreme Court, so I'm not sure what you're trying to say here.

Anyone who says there is "zero question" about this, though, is either not paying attention or being disingenuous.

No, they're just someone who recognizes that not liking a law doesn't make that law invalid. The copyright laws were clear here. People need to get over their passionate hate of the current system and see things clearly.

Aereo thought the magic of "disruption" would make them immune; they have learned that it doesn't work this way.

If you don't like the law, change the law. The courts have to uphold them as they are.
posted by Sangermaine at 1:57 PM on June 25


"The court" in the Cablevision case was the 2nd Circuit. It is not binding on the Supreme Court, so I'm not sure what you're trying to say here.

That Aereo was complying with the law as it existed in New York City (where they're based) at the time. Circuit court rulings aren't advisory.
posted by Holy Zarquon's Singing Fish at 2:15 PM on June 25 [1 favorite]


And if you were watching the kicking that PlayOn was getting in the Ninth, it was pretty clear that a) the only thing holding Aereo up was Cablevision and b) the other circuits weren't in agreement (as Aereo themselves found out in the Tenth.)
posted by NoxAeternum at 2:25 PM on June 25


Does this portend anything for Uber and the other "we're disruptive" businesses out there? I think it might mean the court is unlikely to buy their arguments for why local taxi and hotel regs don't apply.
posted by humanfont at 3:07 PM on June 25




Agreeing with Thomas, Scalia, and Alito almost makes me reconsider. But I honestly do think this court has, for years, first decided which outcome they wanted, and then cobbled up some legal rationale for it, and this is just one more example.
posted by tyllwin at 3:31 PM on June 25 [2 favorites]


The net effect is the same, despite the change in legality: I can watch a channel that I should be already able to receive, because I've "moved the antenna" and used the internet as a very long antenna cable. The ads I see are exactly the same -- nobody is changing the content in any way. The metaphor of "renting an antenna in a nearby better location" is apt

Basically i think the real issue with it, and everything else is a fig leaf, is that they were collecting that $8 from a whole bunch of people and making actual money. It doesn't matter if they were setting up a bunch of antennas or whatver, they were making a profit for no real work besides buying some equipment off of the broadcasters streams and that pissed them off.

On preview, tyllwin said essentially what i was thinking when i wrote that paragraph. The cable companies showed up and said "we don't like this, they're making money off what we see as our backs, make it stop" and they bullshitted up something that sounded ok.

If this service was free, this court case never would have happened. I bet it would have happened if they showed ads on the page around the streaming video or something though too.

The issue they took with this is essentially the same reason that you can't serve ads on youtube videos that have copyrighted music in them or something. Whether or not there's previous precedent otherwise, the media conglomerates have decided "no, fuck this" and the hammer is swung. Call this comment idiocy or whatever you want, but it's really hard to not just read this as getting smacked by the big middleman for being a little middleman running a side game.
posted by emptythought at 3:41 PM on June 25 [2 favorites]


No, they're just someone who recognizes that not liking a law doesn't make that law invalid. The copyright laws were clear here. People need to get over their passionate hate of the current system and see things clearly.

The axe you grind may be your own.
posted by The Bellman at 3:48 PM on June 25 [3 favorites]


well...a tax-loophole is a law that people work around, and an SEC loophole is a reg that people work around, and prosecutorial discretion is a thing...so I see lots of places where the the loophole-is-the-loophole til the law changes. Areo found a loophole and exploited it. Just not enough friends in high places.
posted by j_curiouser at 8:25 PM on June 25 [2 favorites]


this is so bizarre. I had a huge argument with someone a few years back where they were convinced that traditional radio broadcast of TV had ended, and that you could only watch TV if you bought it from a cable company.

There's a lot to be said about the legal aspect of this, but I think the marketing/misinformation aspect is huge too.
posted by rebent at 6:18 AM on June 26 [1 favorite]


They probably confused the switch to digital broadcasting with the end of broadcasting in general.
posted by Drinky Die at 7:16 AM on June 26


Either Cablevision was decided wrongly or this one was.

Assuming, for purposes of this post, that your interpretation of Cablevision is correct, then by definition, Cablevision is wrongly decided. What the Supreme Court says goes for every court.

As for the claims that if Aereo was doing this for free there would be no case. . .people don't pipe content into your living room for free.
posted by Ironmouth at 8:06 AM on June 26


Assuming, for purposes of this post, that your interpretation of Cablevision is correct, then by definition, Cablevision is wrongly decided. What the Supreme Court says goes for every court.

That is a pointless, pedantic, and condescending reply. I am sure everyone here is aware Supreme Court decisions apply for the other courts. That doesn't mean the Supreme Court always avoids deciding cases wrongly.

As for the claims that if Aereo was doing this for free there would be no case. . .people don't pipe content into your living room for free.

Sure they do, want me to send you some .torrent links?
posted by Drinky Die at 8:13 AM on June 26 [1 favorite]


And if the content those files point to isn't properly licensed, that distribution is no more legal than Aereo's retransmission.

Furthermore, this ruling very easily reconciles with Cablevision, as Cablevision/Optimum/Charter themselves pointed out - the issue was not the DVR aspect of the system, but the initial capture of the signal. Aereo thought that they had come up with a technological exploit based on Cablevision, where they used a bank of microantennae dynamically assigned to users meant that it was the user getting the initial transmission, not Aereo. But the courts saw this as nothing more than a form of technological sophistry, pointing out that there was no real difference between the array and a single common antenna.
posted by NoxAeternum at 8:32 AM on June 26


And if the content those files point to isn't properly licensed, that distribution is no more legal than Aereo's retransmission.

Of course, but legality wasn't the question there.
posted by Drinky Die at 8:40 AM on June 26


people don't pipe content into your living room for free

Um, that's exactly what television broadcasters do.
posted by toxic at 10:20 AM on June 26 [3 favorites]


The only reason you think those broadcasts are "free" is because you're actually the product.
posted by NoxAeternum at 10:42 AM on June 26


The only reason you think those broadcasts are "free" is because you're actually the product.

Which makes the broadcasters position here laughable.
posted by ChurchHatesTucker at 10:56 AM on June 26


They are free because we don't pay money for them. This is a valid use of the word free. Tossing out the Mefi favorite about advertising is not particularly relevant to a discussion about a service that left the ads completely intact, as has been pointed out multiple times and even by a mod.
posted by Drinky Die at 10:59 AM on June 26 [2 favorites]


people don't pipe content into your living room for free.

Odd, I get twenty some channels with nothing but a piece of wire plugged into my TV. I guess the TV did cost me money, so in that sense it's not free, but definitely at no "extra" charge. Like a free concert or something, it's largely paid for by ads, but that doesn't make it any less free to me.
posted by wierdo at 11:47 AM on June 26 [1 favorite]


Anyway, when is Cablevision going to get their ass sued again? The network DVR concept, as implemented by Cablevision, is as much a technological workaround as Aereo ever was.
posted by wierdo at 11:50 AM on June 26


The only reason you think those broadcasts are "free" is because you're actually the product.

For the purpose of selling me to advertisers, I am the same product whether I get the signal from an antenna vs. Cable vs. a Satellite dish vs. Slingbox vs. Aereo vs. watching at a bar. I see the same ads that the broadcaster sold to their customers, and there are reasonably accepted ways of measuring the total number of those customers/reach of the station.

Except that if I receive that signal via antenna, I don't have to write a check every month. That's a perfectly valid use of "Free" (as in beer). It is also "free to watch, as in properly licensed". For me, as a consumer of live sports in HD via an antenna on the roof, that's free enough.

I'm fully aware that the broadcasters aren't carrying these shows/games for my benefit, and that the reason that they pipe content into my living room for free is so they can make money by selling advertising. I have no problem with that, especially for live sports.

The problem is that the broadcasters don't really want people to receive their content over the air, precisely because it is free (as in, "doesn't require the viewer to pay the broadcaster for the rights to watch this content"). They'd much rather you receive the same channel by cable/satellite, where the broadcaster is being paid retransmission fees by the cable company who is passing them along to the viewer.

Those retransmission fees have been written into the law of the land since 1992 (to apply to cable and satellite providers). You know what else is in that law? that terrestrial broadcast licensees must use the airwaves primarily for the "public interest, convenience and necessity" (and that part's been hanging around since 1927).

There is (was?) a legitimate legal question as to whether Aereo is a more like a cable company (under the 1992 definition), or more like an antenna rental company. It didn't cleanly fit either model, because of its novel implementation. Aereo spent a lot of money creating that novel implementation primarily to show that they were renting antennas, and thus did not fit the 1992 definition of a cable company -- yes, they were pushing the issue, but they had a point.

The broadcast networks spent a lot of money on lawsuits to slap Aereo back into line. I don't think that serves the public interest or convenience at all, particularly given that the opinion basically read as "this smells like a cable company, so it's obviously a cable company"... when SCOTUS opinions are usually much more nuanced than that.

It smells like 20 years of well-earned lobbyist salaries to me.
posted by toxic at 12:00 PM on June 26 [4 favorites]


FWIW I think one of the additional issues that broadcasters had with Aereo (on top of the lost retransmission fees) was the inability to track eyeballs via Nielsen and other ratings groups. I work in broadcast (as an engineer) and all that information about who watches what helps us make money. We can't tell our advertisers how much we're charging them without being able to say 'this many people with these attributes watch this program and will see your ads'. Granted, if Aereo gave broadcasters access to that information, it would probably be even more valuable than fuzzy Nielsen data since it would be paired with all the rich mobile device information tracking that comes with it. A missed opportunity, for sure.

Oh, and as above, cable companies are allowed to insert their own ads into our stream to them. It's part of our particular agreement that Comcast gets a slot to overwrite their own options into. I know this because we'll get FCC complaints about advertisement noise volume and 99% of the time, it's a problem with an advert that Comcast has injected. I'm not sure about other providers or stations, but that's my experience.

AFAIK, many broadcasting companies are feverishly working on developing their own streaming platforms where they control the viewer data and can incorporate that into their ad sales.
posted by msbutah at 12:11 PM on June 26 [2 favorites]


It seems that Aereo's innovation was primarily in how to label a diagram.
posted by NoxAeternum at 12:59 PM on June 26


FWIW I think one of the additional issues that broadcasters had with Aereo (on top of the lost retransmission fees) was the inability to track eyeballs via Nielsen and other ratings groups.

No. That would be an easy revenue stream for Aereo that they would be happy to implement.

The Broadcasters are intent on double dipping here.
posted by ChurchHatesTucker at 1:04 PM on June 26 [2 favorites]


OMG I can't watch local TV from Toledo when I'm in Seattle. Whatever shall I do now?
posted by spitbull at 7:54 PM on June 26


On the bright side, taking this decision along with the recess appointments ruling it becomes quite clear that many members of the present Court are activist in a similar way that they are in the wingers' feverish nightmares.

Here, it was decided that because Aereo looks like a cable company, they should be treated as if they are even though they are not. In stark contrast, the Senate should be treated as if they are not in recess even when it looks very much like they are. Odd, that.
posted by wierdo at 8:49 PM on June 26 [3 favorites]


The Broadcasters are intent on double dipping here.

No. The Broadcasters are intent on preserving double dipping as given to them by the law that enforces Retransmission fees.

The case wasn't "are retransmission fees legal" it was "does Aereo represent retransmission"
posted by JPD at 7:17 AM on June 27 [1 favorite]




OMG I can't watch local TV from Toledo when I'm in Seattle. Whatever shall I do now?

Aereo didn't let people watch channels from outside their metro area.
posted by Pruitt-Igoe at 9:58 AM on June 27 [2 favorites]


Aereo Fallout Begins: Fox Uses Ruling To Attack Dish's Mobile Streaming Service

Except that the ninth circuit had already ruled that Aereo was illegal, and yet had also already dismissed Fox's lawsuit.
posted by JPD at 10:21 AM on June 27


But now they have to take the SC ruling into account.
posted by ChurchHatesTucker at 10:41 AM on June 27


The SC decision was just affirming that circuits decision on the matter.

The ninth had already ruled PlayOn - an aereo copycat -was illegal, while also separately choosing to dismiss Fox's suit against Dish's mobile streaming service.
posted by JPD at 11:03 AM on June 27


They didn't just rubber-stamp the circuit court's reasoning, even though they reached a similar result. Breyer's wording matters.
posted by Holy Zarquon's Singing Fish at 11:34 AM on June 27


presumably that's why Fox's lawyers were able to convince Fox to spend some more billable hours.
posted by JPD at 1:00 PM on June 27


I just got my notice from aereo that service is suspended today at 11:30 EST.


.
posted by JBennett at 7:07 AM on June 28


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