The Copyright Act is a federal statute that protects any public performance of a copyrighted work from infringing uses.
Aereo took what were undisputedly public performances of works from broadcasters to the public, intercepted them, and by a feat of what amounted to technological legerdemain turned them into what it argued were no longer public performances but, instead, individualized transmissions from its service to each of its end users as an audience of one.
In this case, the Supreme Court rejected that argument, relying heavily on the idea that it was merely interpreting a statute (the Copyright Act) that had been amended by Congress in 1976 in part to overturn a couple of Supreme Court cases that had interpreted the prior Act to permit cable-TV style transmissions of copyrighted material free of copyright restrictions. The Court held that, in doing so, Congress intended to bring cable-like services such as Aereo into the Act's sweep regardless of the particular technological ways in which it handled the copyrighted material as it re-transmitted it to its users. Treating such technology, in effect, like a black box, the Court emphasized that, regardless of its innards, this service appeared to all concerned - to broadcasters, to viewers, etc. - to be functioning just like a cable service and therefore fell squarely within the Act's coverage as Congress had intended to modify it in making the 1976 amendments.
The most fascinating part of the decision, in my view, was how the Court arrived at this result while simultaneously trying to narrow its impact so that modern technological innovations would not be hit by its shrapnel. The Court not only did so but did so emphatically. Indeed, it devoted an entire section IV (pages 15-17) of its opinion to that issue. "We agree", said the Court, "that Congress, while intending the Transmit Clause to apply broadly to cable companies and their equivalents [i.e., Aereo], did not intend to discourage or control the emergence or use of different kinds of technologies." The Court then goes on to suggest (without deciding) a number of potentially key distinctions by which things such as, e.g., cloud music services might not in any way be infringing, including the prospect of fair use or the fact that the user receiving a transmission from the service may already own the copyrighted works being transmitted. I believe this is a strong signal from the Court that lower courts are not to ham-handedly interpret copyright law to stifle innovation but are to apply it carefully to prevent its abuse.
All in all, this decision represents a guarded upholding of traditional IP protections that prevents the use of technology to enable free-wheeling use of broadcasted materials while at the same time limiting its holding to that narrow sphere. Given the technical wording of the Act, it could just as easily have gone the other way and upheld the Aereo service as nothing more than something that facilitates individual, "private" performances via a streaming technology. But that would certainly have glorified form over substance and, I think, the Court got it right in the end.
For once I agree with Tony Scalia (a rare event indeed!). The question before the Court was not whether Aereo should be permitted to keep operating, but simply whether a preliminary injunction should be granted against it on the grounds of direct infringement of reproduction rights. A decision in the negative would have returned the case to the lower courts for litigation of the remaining questions; it wouldn't have put Aereo in the clear.
And I think Scalia is right that Aereo does not commit a volitional act when one of their subscribers plays back a recorded show. By not committing a volitional act, they cannot be guilty of direct infringement.
I personally also think that the resulting performance is, crucially, not public. (Scalia explicitly does not address this question.) But this argument appears unlikely to prevail in the end.
Wonderful summary, and I agree with your conclusion: people should take this as the Court saying "no" to Aereo's contrived, free-riding business model, and others like it, not to new technologies that enable people to store and access content which they already own [a license to].
Can I set up my own antenna in New York and stream its recordings back to myself in Minneapolis? How long is my antenna allowed to be before it magically switches to becoming illegal? This is an incredibly stupid decision that raises many more questions than it answers.
If you read the decision, you will see that you are absolutely allowed to do this. The length of the antenna or wire has nothing to do with anything. What is not allowed is public rebroadcasting (or what the law refers to as "performing").
The entire reason this law was written is because under an old law, cable companies ("community antenna television" in that day) were setting up antennas and running cable to multiple homes, charging the users for it, and not paying anything to the broadcasters/copyright holders. They made the same claim Aereo is making now - we're not rebroadcasting, we're just a big antenna connected to multiple homes. The law was written specifically to address this, but it was written in a generic way to avoid loopholes... like exactly the loophole Aereo claimed existed.
The gist of the supreme court decision is that, despite the behind the scenes trickery, Aereo is essentially no different from a cable company as far as that law was written. The intent of the law was certainly to restrict companies exactly like Aereo, and the letter of the law gives the court the ability to enforce this intent.
Before you call the decision "incredibly stupid" you might want to actually read it.
So you agree that I have a legal right to accept the OTA transmission in New York, to make a personal copy of the transmission, and send that copy to myself in Minnesota for viewing.
This is precisely what I do by hiring Aereo. There is no difference except I pay someone else to do the development and maintenance since I lack the skills or free time to travel to New York and set this up myself.
Suppose we look at it through a slightly different lens. I take a file to which I have a legal right, say some copyrighted material that I have paid for. I upload this file to my personal Dropbox account, which I share with no one. Then I travel across the country and download it for viewing.
Has Dropbox just committed copyright violation? If not, how does this differ from the scenario I gave in the first two paragraphs, where apparently Aereo was committing a copyright violation?
I'd highly recommend reading the ruling. It's a good read and the points are made more eloquently than I can put them. I'm not speaking as to whether or not the law is a good law, but this interpretation of the law seems pretty solid. Your hypothetical Dropbox scenario is actually addressed at the bottom of page 16, but you need context from earlier parts of the ruling to understand the "public" argument.
It's not really worth me repeating the argument here, as it would take 16 pages to do, and the Supreme Court has already done the work. After reading it I'd love to see your arguments with specific parts of the text.
My main beef is I feel they're stretching pretty far to claim the transmission requested by an individual from a private antenna to that individual is actually to the public. The argument I'm objecting to is around Section 3, page 12-14 or so. The transmissions were each individually requested by each user, and chosen to watch at unique times and durations by each user. That, to me, is sufficient to mark each transmission as private. None of the transmissions are identical or sent to anyone who did not explicitly request them, unlike the CATV operators they continually draw comparisons to. There is no part of that process that I think can reasonably be called a public transmission.
Page 16 does address the Dropbox scenario, but I don't think it provides a clear line, which makes this a pretty crappy opinion, in my opinion. As they say on page 16, the cloud operators could try to slip through the holes in their definitions of "perform" and "the public", but I don't really see the distinction. I, the user, used my legal right to place copyrighted work on the remote service, and I chose to play it back some time later. That sentence applies both to Aereo and to Dropbox, and I think this decision would make the Dropbox scenario illegal.
If the person you're paying is doing the work, then it's obviously not for their personal use. It's for yours. So they're doing it for money on someone else's behalf, which throws the "personal, non-commercial use" argument straight out the window.
Moving on to Dropbox. Dropbox has no involvement in the selection of the file in question, or even the type of file, and moreover, they're not the ones to place it on their system, you are. Aero, on the other hand, knows exactly what they're receiving because that's what their entire system is explicitly and narrowly set up to receive. They can't claim ignorance as to what they're capturing when their basic sales proposition hinges on a specific declaration as to what - exactly - they're capturing and re-selling.
In other words, the arms-length relationship between the service provider and content that protects Dropbox under the DMCA's Safe Harbor provision does not exist with Aero.
> If the person you're paying is doing the work, then it's obviously not for their personal use. It's for yours. So they're doing it for money on someone else's behalf, which throws the "personal, non-commercial use" argument straight out the window.
Boy is Geek Squad going to be in trouble when it's discovered how many TV installations they've assisted with are used for pirated material.
> They can't claim ignorance as to what they're capturing when their basic sales proposition hinges on a specific declaration as to what - exactly - they're capturing and re-selling.
I don't understand the distinction. In both scenarios, capturing an OTA broadcast and purchasing a digital file, I have the right to own and make personal copies of the content. I don't see how the law can make a distinction based on how I acquired the content in the first place, provided I have both of those rights.
Aereo doesn't need to claim ignorance because I have never broken the law. I have the right to accept the OTA broadcast and to store, transmit, and view personal copies of the broadcast.
Wait, do you not see the difference between a one-time transaction with a third party that installs equipment they neither own nor operate and that has nothing to do with content, and an ongoing service relationship with a company that both owns and operates equipment that has everything to do with content?
Are you fucking serious?
"I don't see how the law can make a distinction based on how I acquired the content in the first place, provided I have both of those rights."
In the case of Aero, you didn't acquire the content from the broadcaster. Aero did. And Aero is not authorized to redistribute the content legally. The law can distinguish between your paying them for content and you paying Apple as easily as it can distinguish between an iPhone bought from directly Apple and one bought from a mugger who stole it from someone on the subway.
Like you said, "I have the right to accept the OTA broadcast and to store, transmit, and view personal copies of the broadcast."
Sure, but what you do NOT have the right to do is set up a commercial operation that resells those "personal" copies to others, which is precisely what Aero was doing. So yes, you can set up your own antenna and run it yourself. What you cannot do is set up a business that sets up antennas and runs them for other people.
> Wait, do you not see the difference between a one-time transaction with a third party that installs equipment they neither own nor operate and that has nothing to do with content, and an ongoing service relationship with a company that both owns and operates equipment that has everything to do with content?
I don't see how that difference is at all relevant to the analogy. Is it just because one involves repeated payments? Would it be legal for Aereo to charge a one-time fee instead of a subscription service? Or is the problem that Aereo owns the property where the physical antenna resides? Does my personal antenna+streamer have to reside on property which I own directly? What if I rent my apartment? Heck, my Internet connection is a subscription service, and I neither own nor operate any of the Internet equipment myself.
>Is it just because one involves repeated payments?
No, it's illegal because it involves reselling streamed or broadcast content (as opposed to content on physical media which can be resold under the doctrine of first sale) which is illegal regardless of whether it's done for one-time or ongoing payment. Commercial re-transmission is the real bone of contention.
>Would it be legal for Aereo to charge a one-time fee instead of a subscription service? Or is the problem that Aereo owns the property where the physical antenna resides? Does my personal antenna+streamer have to reside on property which I own directly?
Probably irrelevant, since they're still running a commercial service. That means the signal in question is not being pulled down by a private individual for personal, non-commercial use. It's being pulled down by a commercial company for the benefit of its customers. That puts it on the wrong side of the law.
Of course, if Aero were set up as a co-op, and its customers were owners of not just the antennas but the building etc. and were mutually responsible for the electricity and so on, then perhaps it could get around the law. But that's purely hypothetical, where as the Supreme Court was ruling on the (very different) reality.
>What if I rent my apartment? Heck, my Internet connection is a subscription service, and I neither own nor operate any of the Internet equipment myself.
If you rent your apartment from a landlord who charges you an additional fee for access to the wire running from the building's rooftop antenna to your flat, then the landlord is the one on the wrong side of the law.
As far as your ISP is concerned, they are treated by law (as far as content goes) in the same way that the telephone companies are treated. That is to say, they cannot be held partially responsible for any infringing uses you may use of their service, in the same way that the phone company can't also be charged with conspiracy when two gangsters use their system to plot a crime.
In terms of the internet, this comes from the Safe Harbor provision of the Digital Millennium Copyright Act (DMCA, 1998. In determining whether a network operator is partially responsible for infringing uses, the critical test is the source of the content. If they were the ones who put it on the network, they they can be held liable. But if (as in the case of YouTube or Dropbox) they're simply the hosts for material that others upload at their discretion, they are protected from liability. There's major caveat in that they must pull the content down if the owner of the content notifies them that its presence on the network is infringing. If they fail or refuse to honor a take down request, then they lose their legal immunity.
Aero is not protected by Safe Harbor since they're the ones who introduce the content to their network when they initially pull it off the air. Again, if they were run as a co-op (meaning there was no legal difference between the owners of the equipment and its end users) the case may have gone differently. But as they are an unprotected third party placing themselves in the middle of a legally protected broadcast transmission, and doing so on a commercial basis, they're doing so in violation of the law.
> Wait, do you not see the difference between a one-time transaction with a third party that installs equipment they neither own nor operate and that has nothing to do with content, and an ongoing service relationship with a company that both owns and operates equipment that has everything to do with content?
> Are you fucking serious?
No need to be rude. Given that nothing illegal occurs throughout the entire process, no, I don't really see a difference between who provides the service.
> In the case of Aero, you didn't acquire the content from the broadcaster. Aero did. And Aero is not authorized to redistribute the content legally.
I see you aren't familiar with Cablevision. Yes, they are authorized to redistribute the content. Cablevision explicitly made remote DVR services legal.
> as easily as [the law] can distinguish between an iPhone bought from Apple and one bought from a mugger who stole it on the subway.
My, what a poor analogy! In that case the mugger had no legal right to acquire that phone. I, however, do have a legal right to acquire OTA broadcasts.
Sorry, but I take offense at arguments that are stupid or dishonest. The Geek Squad analogy is not even remotely applicable since nothing owned or operated by the Geek Squad touches the content stream. Given that the content stream is the bone of contention, comparing them to Aero is - at best - stupid, and at worst, diversionary, which smacks of dishonestly.
And since we're on the subject, there was also an element of dishonesty in the way you tried to defend your Dropbox analogy. Initially, when you were wondering about what differentiates DB from Aero, you were talking about the companies. The explanation that one company qualified for the DMCA's Safe Harbor protections while the other didn't demolished your position. But you didn't concede - or even acknowledge - the point. Instead, you tried to continue the argument by quietly shifting the subject from the companies to the content, which is a separate matter entirely. This kind of rhetorical shell game is a weasel move, and is not something you see from people who argue in good faith.
And so you know, it was the pattern of dishonesty - and not a single incident - that raised my ire. If you can't support your point without resorting to bullshit, it's probably because the point you're trying to make is a bad one. Honest people stop there. Bullshitters press ahead, typically by employing the shell-game tactics you just used here.
For more on that subject, see Harry Frankfurt, who notes that liars - bad as they are - still respect the authority of the truth if only to do a better job manipulating it to their own ends. Bullshitters simply don't care. For this reason, they're a greater enemy of the truth than liars.
Moving on, I am "familiar" with Cablevision. They're a cable company that does business with content providers. Consolidating remote DVRs under a single roof is not a problem for content providers as long as payments from Cablevision remain uninterrupted per the terms of the contracts that Cablevision signs. Indeed, if their remote DVR system increases paid and advertiser-auditable audience reach, it can work out well for everybody. Because of this positive business relationship, Cablevision is authorized to redistribute the content that Cablevision redistributes in the way that they redistribute it.
If Aero wants to redistribute content in a similar fashion, it needs its own contracts with providers. It can no more piggyback on Cablevision's contracts for content than you can park your car in a private spot reserved for - and paid for - a complete stranger.
That's the issue here. It's not about your right to pull down OTA content. It's about your desire to pay a third party to do that on your behalf. Specifically, it's about the right of that third-party to offer that service on a large-scale, commercial basis in the first place. This is what's known in terms of copyright law as "substantially infringing."
> Sorry, but I take offense at arguments that are stupid or dishonest.
Having read the conversation it looks more like talking past each other and failing to get to the core issue then stupid or dishonest arguments on either side.
You are not Aereo and Aereo is not you. That's the point. You can pull down content for your personal, non-commercial use, and Aereo can pull down content for its personal, non-commercial use, but the moment either of you pull it down then transfer it to the other - especially on a commercial basis - then you've run afoul of the laws prohibiting retransmission.
> then you've run afoul of the laws prohibiting retransmission.
That is what result of the Aero court case says but the legal standing was not so clear with out this court case. Otherwise it probably would not have made it to the Supreme Court nor cause so much discussion on Hacker News.
Really it seems most people who disagree with with the court case are looking for why is this ruling is fair or why did those who originally make the law think it was fair(is is still fair?) or does this make society better?
Putting aside the smoke and mirrors of the "individual antennas" for just a moment, the basic issue is unavoidably clear.
(1) These were retransmissions.
(2) They were commercial.
(3) That is illegal.
If Aereo was run as a co-op, and subscribers were also the owners of the facility and the employers of its operators, then a plausible argument could be made that the people pulling down the signals and the the people ultimately receiving them were one and the same. Accordingly, they'd be free to do what they liked without getting permission from - or paying money to - the broadcasters.
This arrangement would be substantially different from the original cable retransmission case, where the Supreme Court ruled against a model where the owner / operator of the antenna and backend delivery was distinct from (and sending bills to) the audience.
It would be more like the owners of a Manhattan co-op putting a single antenna on the roof of their building (key word: their) and running multiple wires into their individual units.
But while this far more defensible co-op structure may frustrate the broadcaster's lawyers, it would also frustrate (a) the venture funds backing the set up and (b) the banks angling to produce a liquidity event via a major sale or an IPO since legal immunity would be tied to the non-transferability of ownership from audience members to unrelated third parties.
That's what did Aereo in: they tried to have their cake ("See? Individual antennas! It's personal, non-commercial use!") and eat it ("Hey investors! Would you like violate both the personal and non-commercial shields that protect this operation by purchasing a stake in somebody else's stream?").
I don't know why the lower court couldn't see through this malarky, but I'm glad the Supreme Court did.
Define "maintain". If you mean "pay the guy who installed it to keep it in good working order", there's no problem. But if you mean "pay the guy who installed it to record everything that comes off the antenna then set up a commercial service to redistribute that content anywhere in the world to a device of your choosing" then it's a probably illegal. On an individual basis it's also pretty inconsequential, so as a practical matter, it's not a concern.
But if you were the owner of a big enough building and were also charging people for the wire service to their apartments - and beyond - it gets more problematic. Indeed, a variation on this is what the Supreme Court ruled against decades ago. And if you do this on a truly industrial-sized basis (as Aero did) then expect the hammer to drop.
They're only out of luck if the owner refuses to install an antenna. But assuming that an antenna exists and that it sends connections to each apartment, then they're back in luck.
If the owner amortizes the cost of this antenna as a general building expense, and sets all the rents accordingly, there's still no problem. However, if the owner attempts to charge a separate fee for that connection (or tries to raise the rent for people who opt out of paying that fee) then he has not only inserted himself in the middle of the content transmission stream, he has done so on an individualized commercial basis. In effect, he's made himself a micro-distributer by establishing a cash for content deal with his tenants and the law has a major problem with that.
Your argument doesn't work for the analogy, because the viewer is simply paying someone to do the physical work required for the viewer to remotely watch his own stream from his own antenna. It's like the difference between setting up a cable card and Internet stream server yourself, and hiring a tech guy to come to your house and set it up for you.
The critical difference with Aero is that it's never your antenna. It's leased, not owned, and moreover, Aero treats the antennas themselves on a fungible basis, meaning that they they simply maintain a 1:1 relationship between the number of antennas and the number of subscribers, so you're not even leasing any specific piece of equipment. You're just buying individual access to an independently owned and operated antenna array.
That's miles away from "just hiring a tech guy to come over and set up your cable card".
> they simply maintain a 1:1 relationship between the number of antennas and the number of subscribers,
That is not my understanding. Bob and George could have both leased Aero antenna in the same area. Bob's could get good rescission and George's could get bad reception impacting making George's experience worse. Or so says the public statements of Aero.
> You're just buying individual access to an independently owned and operated antenna array.
Is there evidence of this that contradicts Aero's public statements?
Here's how the arrangement was described last year in a Gigaom article.
"the antennas are “multitenant” which means that, when one Aereo subscriber is not using an antenna at a given time, it is available to all other subscribers."
So no, it's not "your" antenna any more than a weekend rental from Hertz is "your" car. Moreover, the antenna is only part of the package. The real lyncpin making the system work is - or was - Aero's proprietary transcoding setup and the equipment that handles the feed coming off the antenna, and that is definitely not run on a 1:1 basis.
I mean, the whole idea that this is a bunch of individually "leased" equipment packages that just happen to be co-located in the same facility without any meaningful overlap between each person's personal, individual feed ("just like me putting my antenna on someone else's roof!") is such complete and utter bullshit.
Thank you for the link. One subscriber uses one antenna at a time. That is how I thought it worked.
When you said that "You're just buying individual access to an independently owned and operated antenna array." I thought you meant that all subscribers where sharing access to the to the array.
Time share rentals exist so it makes sense you could do it with antenna as well.
> Aero's proprietary transcoding setup and the equipment that handles the feed coming off the antenna, and that is definitely not run on a 1:1 basis.
Is there evidence they are mixing signals from different antenna to improve signal quality. I thought I had read quotes from the CEO saying with pride this was not the case.
It's not that they're mixing signals from multiple antennas, it's that they're running all the signals through the same transcoding system before delivering them, which breaks any concept of individual streams from reception to audience.
Also, there's an important difference between a time-share rental (which has a single owner doing business with a number of clients) and a time-share co-op, in which use of the property is a function of direct, if partial ownership.
If you own the antenna - even in part - you can justifiably claim that your use is personal and non-commercial. However you cannot resell the material to others. And if you don't own the antenna - and are buying access to the material from someone who does - then you're not getting it from an authorized source.
Individual antennas was clever, but not clever enough. Individually owned antennas (as part of a audience-owned operation) would be more defensible. But then the investment opportunity would evaporate.
Mathematical induction does not apply to the law. Just because a single instance of an activity is legal does not necessarily mean that N instances of the same activity are legal. This is exactly the distinction between "private" performances, which are fair use, and "public" ones, which aren't.
> Just because a single instance of an activity is legal does not necessarily mean that N instances of the same activity are legal.
One person does something it is legal, but if N people do it it is illegal? I do not think that is what you are trying to say, but I can not isolate what you are trying to say.
> And there are lots of examples where an activity is only illegal if N>>1. Unlawful assembly, for example.
Unlawful assembly, at least as it usually is defined in the US state laws (the British form has been expressly repealed for decades, and so isn't an offense in any case) requires not only a purpose of disturbing the peace but the completion of some offense, and so would be illegal in the N=1 case as well, not only in the N>>1 (or even just N>1) case.
So, while there may be a good point here, that's not a good example at all.
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.
None of this examples seem to fit your original statement:
> Just because a single instance of an activity is legal does not necessarily mean that N instances of the same activity are legal.
> 1. Marrying > 1 person
Is not n instances of marriage under the same conditions. It seems like to fit your original statement it would have to be that one couple marrying was legal while N couples marrying was illegal.
> 2. An S corporation can have at most 100 share holders.
The number of people is changing but it is only one instance of forming a S corporation not N instances of forming an S corporation.
> Zoning limits on the number of people that may occupy a structure are common.
The N+1 person moving in is not really doing the same things as the first person moving in similarly to the unlawful assembly.
It would be interesting to look at laws implement actions which are legal with 1 instance but illegal with N, but the example you have quoted so far to do seem to have any carry over to the Aero case.
That depends on how big of a threat Dropbox is deemed to be by major lobbies for content creators or distribution channels. Trying to apply any sort of unbiased reasoning to IP laws is futile. The rulings will be in favor of the most powerful and interested lobby.
If you hired Aereo and paid all costs for them to do this for you and you alone, it would be at least a grey area.
The reality is that Aereo built the system using their own capital and offered the service for a fee to any member of the public. The business model is no different from a cable company or satellite TV company.
In the case of DropBox, you stipulate that you have the legal right to view the file, so that answers the question.
> In the case of DropBox, you stipulate that you have the legal right to view the file, so that answers the question.
I have the legal right to accept OTA broadcasts in New York. I also have the right to store personal copies for time shifting (see Cablevision). It is exactly an analogous situation to using Dropbox to store copyrighted material solely for your own use.
You have a file with rights to use it. You upload the file to DropBox; then you download the file from DropBox. At all points along the way you have rights to the file.
Aereo has the right to view and time shift NY OTA content for their own use. But they upload their file to their system for your use. In doing so, they are attempting to transfer viewing and time-shifting rights from them to you.
This is not exactly the Court's reasoning, but it examines the differences in the context of file rights.
> Aereo has the right to view and time shift NY OTA content for their own use. But they upload their file to their system for your use. In doing so, they are attempting to transfer viewing and time-shifting rights from them to you.
Practically what changes though if I have to log into a server and push a button or two to explicitly start an upload from the antenna to my storage space? How much work do I have to do manually before it becomes legal? What about me doing it manually makes it legal, fair, or better for society.
As an end user you are allowed certain rights like fair use, viewing OTA broadcasts for free, time shifting content, etc. Your rights extend to cover the property you own.
The concept of property ownership is potent in legal reasoning. If you do things with an antenna and DVR that you own, then you are the legal entity doing those things.
If you pay a fee to a company to do those things, then both you and the company are doing those things. The legal status of the company is a service provider, which is different from an individual end user. Aereo was a service provider, but tried to assert that they were merely an extension of each subscriber's personal property. The Supreme Court said no to that interpretation.
As for society, a legal system that provides revenue opportunities for creative works encourages the flow of capital to invest in those creative works. LOST or Breaking Bad would not be possible if the companies producing them did not have some way of making money to pay back their investors.
What about companies that use their own capital to manufacture antennas? What about Internet service itself, which is operated by a third party and paid for on a subscription model?
Aereo now sells me the antenna for $100. They charge me a "colocation" fee. Aereo is now following the law according to this decision. They still don't need to pay broadcasters.
It was an incredibly stupid decision.
I could offer the exact same service. I will point you to a ~$160 hardware device that I will colocate in a datacenter in Chicago for you for $15/month. I'll provide power, networking, and unlimited bandwidth. How is this any different?
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.
What is a semantic difference between setting your own antenna and someone setting it for you and charging for the service? I.e. the service of renting of that antenna? Why the second is suddenly considered bad by the law?
I'm not arguing about whether the law applies, I'm asking to explain the logic of the law which intents to forbid such service.
The logic of the ruling is that Aereo, if you looked at it as a black box, was essentially acting as a cable company. The internal workings of its technology aren't as important as the actual functionality being provided.
So it would be ok to by the equipment, then occasionally pay for repair when it breaks? What is the dividing line that would make buying and paying for repairs ok, but not renting?
The equipment I talked about above includes a server which can be used by the renter to server the signal from the antenna to themselves.
So an end user could log on to their server tap into their antenna and watch whatever the antenna was picking up. They could install dvr software to their server if they needed to record shows and play it back latter.
What if I paid for the antenna with a credit card, and am slowly making payments month by month? What if I rent the apartment where the antenna resides, and pay a monthly subscription for Internet?
Doesn't matter. I know you don't like that but that's the way it is. Common law isn't source code running on a machine with perfectly defined rules, it's a set of values adjudicated by judges.
They looked at Aereo and said: It looks like a cable company and quacks like a cable company so it's gotta act like a cable company. The precise configuration of equipment they have in their datacenter doesn't matter.
I'm not arguing that the law is the way I think it should be. I'm just arguing that the law is really dumb, and that it's pretty clear the legal system just makes decisions that serve the interests of powerful lobbies, rather than some intelligent or even discernible set of rules or principles.
I understand that you think it's really dumb but I think most people would disagree with you. When you get bogged down in the technical details of Aereo's datacenter configuration you miss the forrest for the trees. They're a company that streams TV into people's homes. Other companies (the cable companies) have to pay a fee to the content creators to do that. Why should it be different for Aereo?
It costs a lot of money to make American Idol and CSI and to license the rights to the Super Bowl. The people that own that content should have a right to license it out in whatever manner they choose.
> They're a company that streams TV into people's homes. Other companies (the cable companies) have to pay a fee to the content creators to do that. Why should it be different for Aereo?
The fee was already paid then that party decided to stream it over the air. If the content creator does not want that they they do not have to allow for that usage. Or charge more for it.
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.
So, as others pointed out, renting an antenna should be violating the public performance restriction. Or renting a house with antenna for example, since it's commercial activity. It doesn't make sense though.
> So, as others pointed out, renting an antenna should be violating the public performance restriction. Or renting a house with antenna for example, since it's commercial activity.
Offering antennas or houses for rent may be a service to the public, but if you the service doesn't involve any of the things that count as performance under the relevant provisions of the copyright act but only the tools to do it, its not a public performance.
If Aereo was literally only renting physical attennas, the situation would be rather different than the actual service they were offering.
So what constitutes a mere tool, and what constitutes a performance then?
> If Aereo was literally only renting physical attennas, the situation would be rather different than the actual service they were offering.
Then there is an easy workaround. Let them rent out hardware explicitly. And users can control that hardware anyway they want (for example install some video streaming tools there, may be made by the same Aereo, and stream to themselves). What level of involvement from Aereo makes it a performance?
harryh's point, and the point of this legal decision, is that the text of the law is not really relevant. Anything that appears to any halfway reasonable person to abide by the text of the law, but which upsets powerful groups, will be prohibited, because the goal of our IP legal system is to protect those groups.
It's not that the text is irrelevant. It's that there is also the "spirit of the law" that goes along with that text. When you have to go around the text of the law by jumping through convoluted hoops (which Aereo has definitely done), it's likely you're violating the spirit of the law.
While Aereo's setup is undoubtedly clever, I am glad our legal system doesn't treat the raw text of laws as gospel. Laws are created for a purpose, and it would be impossible to foresee every possibility to get around the intent of a law when you are drafting it.
> It's that there is also the "spirit of the law" that goes along with that text.
Sure, and my point is that the "spirit" of these laws is simply to please IP lobbies. I don't think it's a good thing.
> When you have to go around the text of the law by jumping through convoluted hoops (which Aereo has definitely done), it's likely you're violating the spirit of the law.
How is what they've done convoluted? It's extremely simple.
That's not my point at all. That is, in fact, a gross misstatement of my point. Rather than assuming that everyone on the other side of this is an idiot and/or corrupt you'd be better served to step back a bit and try to work from the assumption that there are reasonable people on the other side of this.
The point is that I'm not a fan of the goals that this legal system is intending to solve. You might be right that this decision is effectively accomplishing certain goals, but that doesn't mean I share those goals.
Sure. But most people think that people who create content deserve to (mostly) own that content and have the right to charge money if others want to use it.
The rental of an antenna is not a public performance.
Offering a subscription streaming service including broadcast content to the public is a public performance.
That is the argument of the ruling, but it seems arbitrary defined.
I would ask what law grounds the definition of the black box. If one would try to do the same to a illegal content hosted on a website, where should I start drawing this box? At my ISP, since it is the edge where I as a customer receives the content? At the websites ISP, since it is the one that broadcast the content? The coo-location of the server, as it is there that the mechanism for broadcast is happening? The hardware, which produced broadcast? Or is it the person who acted on the machine in order to create the broadcast?
As with a onion, each layer covers the internal workings of the next one. The actual functionality being provided (ie content) is the same at each step.
Welcome to the world of common law. It's not source code with precisely defined rules. It's a set of values adjudicated by judges attempting to issue rulings that most would consider fair.
That's not what I was asking. The commenter above said:
> They made the same claim Aereo is making now - we're not rebroadcasting, we're just a big antenna connected to multiple homes. The law was written specifically to address this, but it was written in a generic way to avoid loopholes... like exactly the loophole Aereo claimed existed.
I was asking to explain the logic of that law. What is wrong with renting the antenna? Why it should be forbidden while using the personal antenna is permitted?
Well if you trust the ruling quoted in http://www.mercurynews.com/rss/ci_17625637 then the distinction is that a transmission from equipment you own to equipment you own is private, but transmission from equipment you rent to equipment you own is public. Don't ask me to explain why.
This area looks like a mess. What is the intent of that law to begin with? To charge for special right to "perform" the copyrighted work in public. I don't really get why this principle is extended to delivering the "performance" to the single user. Isn't it about "public" i.e. multiple aspect needs to be present?
The intent of the law is to allow over the air broadcasts (seen as a public good) to exist without completely undermining the ability of content creators to get paid.
How does a stereotypical cable company undermine payment for the public performance? They are only assisting in the reception of the performance for people with bad antenna locations. The stereotypical cable company doesn't extend the range, either, it's just a shared antenna.
I meant before the law was passed, when they didn't pay those fees. I cannot figure out how payment is undermined on a free broadcast. Can you explain how to me?
Honestly, I don't see how you justified the decision and agree that it is "incredibly stupid." Am I not allowed to pay someone to set up my antenna? If I do should that involve other cable companies at all?
"The entire reason this law was written is because under an old law, cable companies ("community antenna television" in that day) were setting up antennas and running cable to multiple homes, charging the users for it, and not paying anything to the broadcasters/copyright holders."
I don't see what is wrong with this. Without that company, that person wouldn't be able to access the content - which is, itself, a "public performance." Otherwise, the person wouldn't be willing to pay for it. Either way, its an agreement between two private parties as to how they wish to access public information.
This is copyright. Copyright holders are allowed to assign reasonable restrictions on the content they broadcast publicly in order to monetize that content as they see fit. One of those restrictions is that the content broadcast over public airwaves may not be rebroadcast or retransmitted for non-private use. If your business model is encoding and retransmitting that content over the Internet, that's not private use. Considering the entire content industry's business model is based on controlling the distribution of the content that they own, there's no way this decision could have gone any other way. If you fundamentally disagree with the content industry's right to control distribution of content that they legally own (or at least control copyright to), then you are free not to consume any of it.
I have no pity for Aereo here. They based their business model on a legal technicality, and SCOTUS simply applied an updated technological interpretation to an old law. Their investors were big time media guys (Barry Diller was a founder of both Fox and USA networks) who knew the risks they were taking: it didn't pan out for them. Aereo is not a story of a plucky startup fighting the system; it's just one part of the system fighting another part of the system over who gets more money. Had Aereo won this decision, the real winners would have been Comcast, DirecTV, AT&T and Verizon.
>Had Aereo won this decision, the real winners would have been Comcast, DirecTV, AT&T and Verizon.
Is that supposed to be a bad thing? Public performances should be public! Location-shifting (at least within the initial broadcast area) and time-shifting should not need any additional licenses. Cable companies shouldn't have to pay for those particular actions either.
If it's a bad law then get the law changed. Unless you can make an argument to convince the supreme court why that law is unconstitutional, the supreme court doesn't decide which laws are good or bad -- they only rule against how (and why) the laws are written. Changing the laws is Congress's job.
If you read the dissent, you'll see a perfectly logical elaboration on the other side of the argument.
The difference between CATV and Aereo is that Aereo leases you exclusive usage of an antenna, instead of retransmitting the single stream to a large audience (i.e. a public performance).
Can I set up my own antenna in New York and stream its recordings back to myself in Minneapolis? How long is my antenna allowed to be before it magically switches to becoming illegal?
If I'm not mistaken, the answers to these questions haven't changed because of this decision. So whatever you think the answer was before, that's the same answer now.
That is not clear to me. I can not pay Aero to set up and maintain the antenna and equipment or at least that is what this ruling seems to indicate. If I can not pay some one to do it for me why is ok for me to do the work with my own two hands?
The question I have is are the local broadcasters prevented from making deals with Aereo, is it too expensive for Aereo? Or rather did Aereo just choose to not deal with them in the first place?
If they had won, could they 'install cable' or a dish in their data center? (For example, could I rent a cable contract through Aereo and then get internet at my home, my office and then my condo in the mountains and share the same content between the three?)
Seems to me that they should just start making deals with the locals, Dish network charges something like $5 a month for access to it so it seems like Aereo could ink a deal with a similar cost.
You don't own media content. You own a license for media content. Your use of the media is dictated by its license.
In general you don't need a license to consume a copyrighted work that you received legally. There was no "click to agree" on the last book I read. You only need a licrense to exceed what copyright allows.
Some software companies have argued that the hierarchical storage of a computer violates copyright, and thus all software requires a license to run. But this case was not about software.
Note: not a lawyer, just a highly interested observer.
> You don't own media content. You own a license for media content. Your use of the media is dictated by its license.
In general you don't need a license to consume a copyrighted work that you received legally. There was no "click to agree" on the last book I read. You only need a licrense to exceed what copyright allows.
Some software companies have argued that the hierarchical storage of a computer violates copyright, and thus all software requires a license to run. But this case was not about software.
A number of courts have broadly agreed with those software companies. While you're correct that you don't need a license to read a book, this is true (broadly) because you don't need to make a copy of a book in any meaningful sense in order to read it.
But to run a piece of software, or read an ebook on a computer, or play a music file, you do need to copy it -- not just into hierarchical storage but also into RAM -- and this brings copyright into play (as far as the courts have generally been concerned), and thus necessitates all of the end-user licensing of digital media.
...not just into hierarchical storage but also into RAM...
Just to clarify, by "hierarchical storage" I mean the entire storage hierarchy of the computer, multiple tiers of which may contain a copy of any given data in use by the computer: registers->cache->RAM->HDD Cache->HDD[->backups]
So according to Wikipedia there is a specific statute that expressly disavows the notion that someone who bought a copy of a computer program would infringe by running it (17 USC 117), the court found that a repair tech wasn't the owner of the copy so the statute didn't apply, and Congress immediately passed another law reversing the effect of the court's decision.
I guess that's technically what I asked for, but I don't think pointing out the existence of that statute does much for the argument that you need a separate license to run a computer program you paid for.
Let's try this again: Can you cite a relevant case that hasn't subsequently been invalidated?
But broadcast television is a bit different since in return for using the public airwaves the broadcasters have certain obligations including providing free access over the airwaves. I don't think you can make pat, blanket statements like that in this specific case.
I understand the Court has some role in determining intention, but the nature of the technology in the background is crucial in determining whether it violates the law. I'm confused about the implications of the ruling.
Would this ruling find me liable if I created "dumb pipe" rented antennas streamed online, like Aereo, if I didn't make it an express goal of the service to watch television? Or say, a filesharing service which has plausible deniability (like client-side encryption) and no expressed intentions for its use to violate the Copyright Act, but that can incidentally be used by consumers to do so? Could the court simply call those kinds of services/software "technological obfuscation" and consider it forbidden? (I believe the court has strayed toward this argument in Grokster and other cases unfortunately.)
If so, I can't make a fair, fundamental distinction between that and any other cloud-like service. Devoting a section to "distinctions" to make lower-court precedent messier cheats a proper interpretation of the facts and will create ambiguity.
The potential for this sort of confusion is one of the main things that Scalia's dissent strongly criticizes:
"The Court manages to reach the opposite conclusion only
by disregarding widely accepted rules for service-provider
liability and adopting in their place an improvised
standard (“looks-like-cable-TV”) that will sow confusion
for years to come."
What I am still wondering is 1) does there remain any possibility to set up such a service so that it could reasonably be called a "long antenna cord" (which part of the Aereo solution violates that?) and 2) does the special nature of broadcast content vis-a-vis public airwaves, etc, have much of an impact on the situation?
This non-lawyer feels that Aereo might have mis-stepped by 1) not going with a tighter "we are a long antenna cable" approach and 2) trying to scare everyone into thinking a ruling against it would somehow stifle mostly unnrelated cloud innovation.
In other words, copyright laws are not some clear set of rules derived from a clear set of ideas or principles. Rather, they are a bunch of vague nonsense that will be interpreted by government on a case-by-case basis, such anything that is opposed by major groups which represent content creators or distribution channels will be deemed illegal.
I agree - the dicta in this case sends a strong signal that SCOTUS will likely closely monitor any citations of this case as precedent for aggressive application of the Copyright Act. They are also sending a message to the legislature that there may be issues now arising from the language of the act that require clarification (not that Congress is likely to act on the message). I'm a bit disappointed in the outcome, and agree with Fred Wilson that this likely pushes innovation towards hardware operated and installed by the individual to address the issue, but, as defeats go, this is a reasonably encouraging decision.
I don't see how this really differs from a person setting up recording equipment in his/her own home to capture that OTA broadcast for later viewing—which itself is legal.
Because Aereo was selling a service of setting up and running that equipment for you.
I have mixed feelings on the whole case but your example isn't directly comparable.
Really though the whole idea of local broadcasts of national shows no longer makes sense. The networks should just live stream their shows online for everyone. This isn't in the interests of the local affiliates and probably is not legally feasible right now due to various contracts with them.
But because of technological changes we don't need local affiliates in their current form anymore. Of course there are local news shows and they are still valuable and networks should show locally targeted commercials but the old broadcast using local affiliates model doesn't make sense with modern broadband capabilities.
Tivo, for example, is also a middle-man that is doing essentially the same thing. Tivo grabs your paid (in this case) cable TV signal, and for a separate fee, records that content onto their hardware and allows you to stream it on devices and televisions without using the cable provider's own hardware.
> Because Aereo was selling a service of setting up and running that equipment for you.
That is a ludicrous precedent to set. Making your services available for everyone to purchase does not make the service itself a public utility. My sending an email containing a copyright file to myself through Gmail's service (which they offer to anyone!) is not the same broadcasting that file publicly and violating copyright, and it's insane to think that it does. This is why cloud service companies are up in arms about this decision.
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).
That seems to be the only real distinction anyone can point to. But how is that different than the customer going to a place like Rent-a-Center to rent a TV antenna and paying them for installation?
This is really the problem with the "look what it does, not how it does it" school of reasoning. What it does (allow you to watch OTA TV) is allowed sometimes and not others. How is a court supposed to differentiate between one and the other without looking at how the thing actually works? How is a company supposed to answer the same question about their product or service?
By weighing the intentions of the company against the intentions of the law.
The intentions of the law were to prevent this rebroadcast of content. The intentions of Aereo were clearly to do this. Aereo tested the waters by trying to make a distinction between public and private, and between transmission and performance. Ultimately, the court did not agree such distinctions were valid.
> By weighing the intentions of the company against the intentions of the law.
Putting aside how you're supposed to evaluate the intent of Congress or Aereo without evaluating exactly what it is they're doing, are you ready for the stupid consequences of that? It would mean someone doing the same thing with the same result would be legal if they had different intent. For example, someone could set up a service where customers can rent a VM in the cloud attached to a software radio[1] receiver that can receive any radio signals. Then "someone" (do you really care who when the outcome is the same?) publishes free software that allows you to use that to accomplish what Aereo does and more. The intent of the antenna provider no longer has any identifiable relationship to broadcast TV and yet people are still watching NBC without paying for cable. The same is true of the software provider, whose software has no reason to distinguish between a radio receiver in the cloud vs. in your home. Is that the result you were going for?
Intent of involved parties is already a big part of the legal system and is a major (and sometimes necessary) aspect of many laws[1]. And in my opinion having intent matter is just common sense. It's why torrent clients are perfectly okay despite how easy it is to find torrents of copyrighted material, but Popcorn Time was probably going to have a challenging time in the courts[2].
The way an intent requirement is supposed to work is that there is some evil specified by the law that you are not supposed to do, and the prosecution or the plaintiff has to prove not only that you did it but that you intended to do it.
The problem with cases like this or Grokster is that it's the reverse of that. If you intended to get the same result as the prohibited thing then whatever it is you actually did is retroactively defined as the offense. It's thoughtcrime. You were thinking "bad thoughts" when you did something, therefore whatever it is you did is prohibited.
The consequences of that are all kinds of stupid. On the one hand it means that everybody has to hire lawyers and censor their employees to make sure nobody says anything that could retroactively cause their actions to be interpreted as unlawful by providing evidence of intent. It's completely pointless for BitTorrent to be OK while Popcorn Time isn't. Popcorn Time is essentially BitTorrent with a different logo. If you can't shut down BitTorrent then being able to shut down Popcorn Time will cause a zero percent reduction in piracy.
Meanwhile for all the language about not wanting to discourage innovation, how is that not the only possible result of this? You might as well post a sign that says "technological solutions to legal problems are prohibited." And technological solutions to legal problems are great, because legal problems are problems and technological solutions are solutions.
Right. The question asked is "Does the technology have substantial non-infringing use?". In the "Betamax case" [1] it was ruled that using VCR's for time shifting was fair use, even though a VCR could be used to illegally copy and distribute content. It had substantial non-infringing use. Bittorrent has substantial non-infringing use, so it is not illegal, though it also has illegal utility.
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.