What salient factors distinguish a cable company from a "mere" streaming video service? Demand programming? Nope. Time shifting? Nope. Advertisement? Nope. Other than the literal media the data flows over, what is the legally meaningful difference?
A cable company is a natural monopoly; servicing an area requires a large infrastructure investment, there is usually only one cable company willing to service a given household, and cable companies negotiate with municipalities. A video streaming service doesn't have these properties. This is a legally meaningful difference because much of the regulation imposed on cable companies is intended to compensate for lack of competition.
Cable isn't a natural monopoly, they are sanctioned monopolies due to their negotiations with municipalities; Previously their only competition was over-the-air broadcast. We have this model in place of a company being given sole propriety over the physical 'cable' infrastructure.
But, just look at what has happened now that Verizon can compete by using a different set of wires (FIOS). They want to compete because it is a huge business and the monopoly has been broken.
The difference with a video streaming service is that they don't own the infrastructure over which their service is delivered.
Of particular interest in this case, a cable company owns it's own infrastructure to transmit programming. A streaming video service over the public internet does not. Previous attempts to get the same ruling have failed on this difference.
What happened to Aereo was ridiculous. They tried to avoid cable regulation, the supreme court used a somewhat-shaky argument to say they looked too much like a cable company to avoid that, then another court said they don't get to use cable rules either??
Yeah, that never made sense to me. How do you claim they're too much like a cable company (thus declaring them one), but not allowing them their rights as one?
The Judges who ruled in favor of that should have been investigated for corruption. It made zero sense, and in my opinion, failed the "follow the money" test.
The Supreme Court case involving Aereo was not a wrong or bad or corrupt ruling.
The historical roots here are the community-access television (CATV) systems of the 1970s. CATV systems were legal at that time, and the Court acknowledged similarities between what Aereo did and what CATV did. But the Court was stuck with the fact that Congress had explicitly amended the Copyright Act to say that a CATV-style system was considered to "perform" the copyrighted programs it passed on to viewers. Which in turn left the Court without much choice as to whether Aereo was "performing" the programs viewed by its customers.
The set of US legislation is not a unified whole, designed (ore even intended) to function as an internally consistent well-integrated machine.
Laws are passed by the ream, and these all provide definitions for the things they're regulating. The whole point of including those definitions is to clearly delineate the boundaries of each bill or regulation. And because they each have their own definition, when taken together you'll always find overlaps that cause strange interactions, or places where there areas between defined domains allow creative loopholes. Thus it's not at all surprising that a pair of regulations, one governing cable TV and one covering data services, have definitions different enough that someone can get stuck on the wrong side of both of them.
It does create a mess, and that's part of what the recent King v Burwell decision was about. The PPACA clearly defined its terms, but in ways the Obama Administration (specifically the IRS) thought didn't make sense, and so they did their own thing. The decision was necessary to resolve the contradiction. This kind of thing will always be the result when legislators or regulators are being driven by political concerns, and especially when their work is rushed and they don't even allow time for experts to read and understand the bills.
There is a patchwork of law and regulations that all need to be aligned to allow internet streaming of broadcasts. Copyright Office regulations, FCC regulations and the Communications Act. Today they (a) are not all aligned and (b) need interpreting by the courts to see how they apply to the internet.
What we're seeing is that being worked out in court cases, Congress, FCC proceedings and Copyright Office proceedings.
It will get worked out but my opinion is that it will need Congress to intervene eventually.
I wouldn't get too excited about it yet. The 9th Circuit Court tends to side with the copyright maximalists. And the Supreme Court hasn't been favorable to something like this either so far.
This reminds of Chicago's recent "cloud tax" [0]. It places a tax on anything related to the cloud, include AWS or Netflix. Most of the premises don't make any sense, and it just seems like another revenue stream for the Chicago government.
> Each one takes an existing tax law and extends it to levy an extra 9 percent tax on certain types of online services. The first ruling presumably covers streaming media services like Netflix and Spotify, while the second would cover remote database or computing platforms like Amazon Web Services or Lexis Nexis. Under the new law, what passes as $100 of server time in Springfield would cost $109 if you're conducting it from an office in Chicago.
