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?
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?