TV Networks Gang Up To Sue Aereo; Do Copyright Rules Change Based On The Length Of A Cable?

from the questions-questions dept

Fri, Mar 2nd 2012 10:39am — Mike Masnick

Well, this was no surprise. As plenty of people predicted, the Barry Diller-backed startup Aereo has been sued by the TV networks in two separate lawsuits (one from Fox, Univision and PBS -- when have Fox and PBS ever worked together on anything? -- and one from ABC). If you haven't followed it, Aereo is a system to let people access broadcast over the air television (i.e., no cable/satellite channels -- just yours basics) via their computers, with some additional DVR-features. The way it works (as we explained last year when Aereo went by the name Bamboom) is that Aereo, for a subscription fee, sets up an antenna just for you to capture the over-the-air signals, connects it to a DVR-like device that you can then log into over the internet. Makes some amount of sense, though it's really yet another example of how kludgey companies have to be to provide what should be readily available already.

The TV networks hate, hate, hate this because they've been raking in oodles of cash from carriage fees from the cable and satellite guys. That's how much cable and satellite has to pay to "retransmit" the local broadcast channels, and it's become a huge, multi-billion dollar business that the TV guys have no interest in giving up in any way, shape or form. It's the reason why you probably hear stories on a regular basis about some cable or satellite network will no longer carry a certain broadcast channel... leading to a lot of posturing and such before one side eventually backs down (often after a short blackout period).

If this whole thing sounds familiar, that's because Aereo has a lot of similarities to a variety of other attempts to offer video online. There are three key cases that Aereo clearly resembles in one form or another -- but since the rulings aren't entirely consistent (yay) who knows where things will end up. I will say that, as with previous cases, this one really comes down to whether or not the length of a cable changes the copyright status of a piece of video content. I find that, when you reduce it to that level, the whole legal question automatically becomes a preposterous one. Tragically, however, courts seem to want to contort themselves into a variety of knots to stop things that they don't like. Anyway, the similar stories:

First up, we've got the ivi case, which may seem like the most similar in terms of offerings, but may actually be the least similar in terms of legal issues. ivi also offered (for a subscription fee) access to over the air broadcast channels via the internet. However, the method and legal arguments were somewhat different. ivi tried to mainly rely on Section 111 of Copyright law, which was what established a compulsory licensing system for cable systems to retransmit network television. Thus, it tried to argue that it was the equivalent of a cable system, and could get by with the compulsory rates.

So far, it hasn't fared well in court. While the products are similar to the end consumer here, the method and legal arguments are pretty different. For what it's worth, the lawsuit against Aereo was filed in the same court as the one against ivi.

The second case is the Zediva case. This one is actually much closer legally to Aereo, even if the products are somewhat different. Zediva worked by having a bunch of network-enabled DVD players in a data center. If you wanted to "rent a movie" online, you could do so, and a physical DVD would be put into a physical DVD player and streamed to you online. Zediva legally purchased the DVDs and argued that this was really no different than having a DVD player next to the TV. It's just that the cable is much longer. The similarities to Aereo are pretty obvious. Both involve a separate physical device at a central location being assigned to an end-user, and then content streaming from that device.

Unfortunately for Aereo, Zediva has also not fared well in court -- a ruling that does not bode well at all for Aereo. The most troubling part of the Zediva ruling was that watching a DVD in your own private home, even if it was solely being streamed to you direct from a DVD player that only you could access for the duration of the movie, was considered a public performance. This seems like a pretty ridiculous reading of the law to some of us, but if the court in the Aereo case reads the law the same way, Aereo is sunk. The only slight ray of hope here may be that the Zediva case was in the Central District of California, rather than the Southern District of NY where the Aereo case is (and the ivi case was as well).

The other "ray of hope" comes from the Cablevision ruling, which noted that a hosted DVR device could be legal and non-infringing, though it involved a horribly convoluted legal argument for the court to reach the conclusion it wanted, focusing on the legality of fleeting buffer copies. This is a ruling that the industry would love to kill off if it could. The good news here, beyond the nature of the ruling, is that this ruling came in the 2nd Circuit appeals court, which is precedent setting for the Southern District of NY where the Aereo case is taking place. It's not a direct comparison, but this ruling could conceivably help in at least one key part of the case.

On the whole, I'd say that Aereo's chances of prevailing are pretty slim no matter what. So far, it seems like the courts tend to use more of a "does this feel different enough to break the law" type of approach.. and then work out ways to make the ruling agree with that. However, if they do prevail here, it will set up an interesting split with the Zediva ruling -- though, it won't be that meaningful, because Zediva more or less ran out of money and gave up on its lawsuit before it reached the appeals court level.

However, as I've noted with all of these services, all they really seem to do is highlight how ridiculous copyright law is both in the contortions it forces companies to go through to try to stay within the letter of the law, and the equally ridiculous contortions that the courts then have to go through to move those lines to claim that these things are infringing in some manner. I still really don't see the point of either ivi or Aereo, but I'm troubled that they're not even allowed to exist. The thing is, if this content was just made available online in an easy, open and convenient manner -- as it is over the airwaves -- then there wouldn't be any issue here at all. But it's not, and thus we get these companies that have to do all kinds of acrobatics to try to legally offer a service... only to see them get sued out of existence for daring to try to stay within the letter of the law, rather than just saying "to heck with it" and setting up a site offshore that provides unauthorized streams in the most efficient manner.

Fundamentally, what this comes down to is the simple question of whether or not copyright law is different if the cord between your TV and the device that brings content to your TV is a matter of feet or a matter of miles. It's clearly legal to watch and record over-the-air TV in your own home with your own antenna (or to watch a movie on a DVD player). The only real difference here is that, rather than a cable running a few short feet from your TV to an antenna or a DVD player next to it, the TV is hooked up to the internet, and the "cable" in question is miles long to a data center... where it connects to a nearly identical antenna or DVD player. To me, it makes no sense at all to say that those two scenarios have different legal outcomes. And, indeed, that appears to be the argument that Aereo is making:

Aereo does not believe that the broadcasters’ position has any merit and it very much looks forward to a full and fair airing of the issues.

Consumers are legally entitled to access broadcast television via an antenna and they are entitled to record television content for their personal use. Innovations in technology over time, from digital signals to Digital Video Recorders (“DVRs”), have made access to television easier and better for consumers. Aereo provides technology that enables consumers to use their cloud DVR and their remote antenna to record and watch the broadcast television signal to which they are entitled anywhere they are, whether on a phone, a tablet, a television or a laptop.

Now they just have to convince a court of that.

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Filed Under: broadcast tv, cable length, copyright, over the air
Companies: abc, aereo, cablevision, fox, ivi, pbs, univision, zediva

79 Comments

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Louis Smith (profile), 2 Mar 2012 @ 10:51am

This isn't about Technology.
... I worked/lived full-time in my RV for 5 years doing DoD IT work - and since I wanted NFL over my Satellite Dish - all I had to do was pay extra as an RV'r "with no fixed address" (don't get me started on that lunacy!) ... and I got all my local channels, ALL the NFL channels (including all games blacked out from my home no matter where I was). So.. seems to me that watching my local sports via satellite involves the signal going from ground to satellite to me... 44,000 miles of "signal length" wasn't an issue once I ponied up the $150 extra.. Isn't that all they really want... just "mo money" If "they" can't monetize it, it must be illegal. And don't try to bring logic into this - it just confuses them.
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JarHead, 2 Mar 2012 @ 11:02am

Wow, 1st one to comment...

If I'm not mistaken, someone commented in the Zediva article that the problem lies not in the length of the cable, but they purchase the DVD's as "end user", which means they didn't secure the rights "rent" them. So my understanding is if one purchase a DVD then stream it over 10.000 miles cable to himself then it's OK, but not to someone else who paid a subscription fee if that payment doesn't end up in the copyright holder hands.

If so then the case with Aereo is different, in that Aereo takes what's already on the air, which in my understanding is free already.
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JarHead, 2 Mar 2012 @ 11:04am

Re:
Wow, 1st one to comment...

OK, 2nd one to hit "submit"...
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John Doe, 2 Mar 2012 @ 11:07am

I am inching closer to hoisting the main sails
I mentioned a day or so ago on another post that I was getting closer and closer to becoming a pirate. I stated that so far the IP industry hasn't really cost me anything other than maybe blocking services I would use. But the thing is, they keep blocking services. If it has come down to arguing over the length of the cable then IP law has gone too far.

This weekend I will be setting up my NAS for access over the internet. I plan to rip movies I rent from Redbox and Netflix to my NAS for later viewing. Once viewed I will delete them. So in effect I am time and place shifting them. My need to do this is because Netflix cannot just simply stream a movie rental like they currently rent DVDs. So I guess, in effect, the IP industry is costing me money by forcing me to dance along the edge of the law by setting up my own cloud streaming.

The more I think about it, the more I realize it may be time to fly the Jolly Roger, hoist the main sales and explore the vast internet ocean whether the IP industry likes it or not.
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Anonymous Coward, 2 Mar 2012 @ 11:15am

'courts seem to want to contort themselves into a variety of knots to stop things that they don't like'

it shouldn't make the slightest difference whether the court likes it or not. if there is no legal reason to stop something, why stop it? as posted by #1, it is all about money and control. the situation wouldn't arise if it were the tv stations offering the service or they were fleecing more out of both customers and the company that is offering the service. nothing like having another innovative company to stop, is there, particularly when it is daring to give customers a service they want
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:Lobo Santo (profile), 2 Mar 2012 @ 11:15am

Re: I am inching closer to hoisting the main sails
Come to the dark side, we have cookies.
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Zos (profile), 2 Mar 2012 @ 11:16am

Re: I am inching closer to hoisting the main sails
There comes a time when a man must spit on his hands, hoist the black flag and begin slitting throats.- H. L. Mencken
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gorehound (profile), 2 Mar 2012 @ 11:18am

Re: I am inching closer to hoisting the main sails
I have no intentions of ever letting the RIAA & MPAA a way into my wallet again.If I can not find it used then I will just ignore that it ever was released.
I no longer have any desire to go near any MAFIAA Products.
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hello, 2 Mar 2012 @ 11:25am

A question
[offtopic]I've got entirely different question, which isn't related to the article. So, my question..
Can I translate Techdirt articles in its full length for totally non-commercial uses? I would like to translate some of the articles in my blog. I can't see any copyright symbol or Creative Commons symbol at the end of the page. So, should I ask from Techdirt on every article if I want to translate it? Should I look for my own laws or American laws? Or can I just translate and link to the original article? Or can I just translate specific paragraphs? I know I could've sent Techdirt staff a letter, but I thought I might get the answer here quicker. Thank you for all your hard work, Techdirt![/offtopic]
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Gatekeeper, 2 Mar 2012 @ 11:26am

Hey we just want laws in the digital world to match laws in the real world. Unless of course its legal in the real world, we also want that to be illegal in the digital world. For instance watching TV from an antenna.
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SpencerMatthewP, 2 Mar 2012 @ 11:28am

Not about the length of the cord
The way it works (as we explained last year when Aereo went by the name Bamboom) is that Aereo, for a subscription fee, sets up an antenna just for you to capture the over-the-air signals,

I've noticed something about all of these "services". Aereo, Zediva, and more, all change service fees. In other words, they are making money off some one else's stuff. If a person were to go out, and do the same thing his or herself, pay for the stuff his or her self, I doubt there would be an issue.

In this case, Aereo is no different than a cable or satellite provider. They are changing a fee to allow a user to view the content. I think this is probably less about the broadcasters, but is pressure from the other gatekeepers. "Why do I have to pay if they don't when they do the same thing?" How is Aereo any different than Netflix or Hulu? They are charging a fee to allow people to watch something they can see for free.

I guess that's my question, why is it okay to cash in with someone else's product without giving them a cut?

Let the flaming begin, please crucify me. I'm not saying the broadcasters are right, but then again, I don't think Aereo is Mr clean either.
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Mike Masnick (profile), 2 Mar 2012 @ 11:29am

Re:
If I'm not mistaken, someone commented in the Zediva article that the problem lies not in the length of the cable, but they purchase the DVD's as "end user", which means they didn't secure the rights "rent" them.

First sale doctrine says that makes no difference. You buy it, you can rent it. There have been specific (and ridiculous) updates to the law that bar this for software and music... but NOT for movies.
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The Infamous Joe (profile), 2 Mar 2012 @ 11:29am

Re: A question
Mike has stated before that anyone is free to do anything with these articles. Although it isn't required, I'd link back to the original article.
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Benjo (profile), 2 Mar 2012 @ 11:31am

It seems like Aereo has a good case
It really does come down to the length of the cable being relevant or not. You could say that Aereo is really just renting internet-accessible DVRs that are setup to record public broadcasts.

If the ruling doesn't go in their favor, it seems like the courts would be telling us we can't legally remote access a DVR that has public recordings, even if its my DVR, my recording, and a secure remote login.
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The Infamous Joe (profile), 2 Mar 2012 @ 11:34am

Re: Not about the length of the cord
Why do they deserve a cut without doing any additional work? Additionally, they aren't paying the costs for these new services, yet they will reap the benefits of having their product become more useful to the end user.

Does that answer your question?
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Benjo (profile), 2 Mar 2012 @ 11:34am

Re: Not about the length of the cord
"How is Aereo any different than Netflix or Hulu? They are charging a fee to allow people to watch something they can see for free."

This is wrong (I think). Netflix pays for the rights to stream their movies, as most of them are not in the public domain. However, public broadcasts are public. I don't think all of these cases are the same at all (nor do I think any of the services should be illegal, but I think Aereo has the best case)
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silverscarcat (profile), 2 Mar 2012 @ 11:36am

Re: Re: I am inching closer to hoisting the main sails
Screw your cookies!

I'm offering pie of all flavors if he does this!
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Anonymous Coward, 2 Mar 2012 @ 11:48am

Re: Not about the length of the cord
Because all they are doing is taking something the end user gets for free in their home and giving them a huge intangible extension cord.

The antennae manufacturer doesn't have to pay Fox a fee for giving people a tool to watch it in their home. Why should these guys have to pay to take that antenna signal and pass it through the internet.

Aereo is not saying we will receive a signal at our office and then let you watch it. They are providing a service to make a signal you already receive at home able to follow you around.

Fox et al are suppose to make their money from advertising on the network people receive for free at home. These people are adding value to that free content getting more people to watch it which is more eyeballs for Foxes ads. Now they have to pay fox for adding value to foxes broadcast and giving fox more viewers?
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Josh in CharlotteNC (profile), 2 Mar 2012 @ 11:49am

Re: Re: Re: I am inching closer to hoisting the main sails
Awwww. I didn't get any pie when I made the switch. This sounds like one of those introductory offers that some company only gives to new customers, but you can't get if you're already a customer.
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Gatekeeper, 2 Mar 2012 @ 11:51am

Watch out Slingbox, you're next.
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Anonymous Coward, 2 Mar 2012 @ 12:03pm

Re: A question
Just give credit where due and you will be cool.

http://www.techdirt.com/articles/20110426/17595814048/is-it-rude-to-link-to-someone-without -first-asking-permission.shtml
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Josh in CharlotteNC (profile), 2 Mar 2012 @ 12:14pm

Re: Not about the length of the cord
In other words, they are making money off some one else's stuff.

This is not illegal, no matter how many times copyright maximalists argue it is.

Company A has a valuable product. But their marketing or distribution sucks. I know I can do better. So I buy, or acquire legally, their product. I then add my own service or distribution, and sell it at a profit to my customers.

The product doesn't matter. No one (well, no one sane) would be arguing if I was buying a physical product in California, shipping it to North Carolina, then selling it here at a markup. It makes no difference if the product is a book, a car, a DVD, a piece of furniture, or a TV signal.

Sure, if I buy a book, make copies, then sell the copies, I've committed copyright infringement. But if I just buy 1 book, transport it, then sell that book at a higher price than I bought it, no law has been broken.

Say that we have Star Trek style transporters. If I buy a book, use the transporter to send it instantly to another state, then sell it there, have I broke the law? Is the "transporter buffer" somehow copyright infringement?
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DanZee (profile), 2 Mar 2012 @ 12:17pm

Re: A question
You can translate them, but you can't post them, print them or distribute them without permission. I'm assuming you want to put them on the Internet. In the US and Europe, everything exists under a copyright unless the copyright holder gives up some of their rights in a Creative Commons statement.

E-mail the editors.
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Machin Shin (profile), 2 Mar 2012 @ 12:20pm

Re: Not about the length of the cord
They are charging a fee for the service they offer NOT for the content. So what you are paying for is the work involved in them setting this up for you and for maintaining it.
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A Monkey with Atitude, 2 Mar 2012 @ 12:21pm

Re: Re: I am inching closer to hoisting the main sails
aye, and Rum, i love Rum
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Machin Shin (profile), 2 Mar 2012 @ 12:23pm

Re:
The way things are going I will not be surprised if they try and attack the VCR again before too long.
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Anonymous Coward, 2 Mar 2012 @ 12:28pm

Antenna on the roof...
...should be illegal, by your argument. Radio Shack shouldn't be allowed to sell me one, because then they are making money off of "someone else's stuff".

For that matter, the TV itself should be illegal. You should need to buy a separate special TV from the producer of each show which can only receive that one "product", otherwise LG and Samsung are making money off of "someone else's stuff", aren't they?
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Anonymous Coward, 2 Mar 2012 @ 12:28pm

What's a...
...VCR, daddy?
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John Fenderson (profile), 2 Mar 2012 @ 12:28pm

Re: Not about the length of the cord
Aereo, Zediva, and more, all change service fees. In other words, they are making money off some one else's stuff.

This is irrelevant to the question at hand, but...

If a person were to go out, and do the same thing his or herself, pay for the stuff his or her self, I doubt there would be an issue.

By this logic, I assume that the broadcasters would have an issue with me hiring a contractor to purchase, install, and maintain the equipment to do this in my own house? Because that's the same thing.

If they don't have a problem with that then it really is about the length of the cable.
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el_segfaulto (profile), 2 Mar 2012 @ 12:35pm

Re: Re: I am inching closer to hoisting the main sails
Cookies can be dangerous, the forces of the dark side can keep track of your comings and goings.
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Darryl out of /the/ Bob, 2 Mar 2012 @ 12:39pm

Re: Antenna on the roof...
Exactly.

Fucking BIG MONITOR leeching off the content creators.

Samsung and LG are nothing but /parasites/ making their money off of piracy.

I mean no one would even look at a computer screen if they were not using it to watch pirated content.

Right after I get my cheeseburger from behind McDonald's PAYWALL i am going to get these pixel making evildoers.
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Anonymous Coward, 2 Mar 2012 @ 12:46pm

Re: Not about the length of the cord
All unencrypted traffic on air is free to intercept... they understandably don't like people making money off it. Simple as that. You're not allowed to profit from it, even if it's free.
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Anonymous Coward, 2 Mar 2012 @ 12:47pm

It all ends up in the same place: once you add a third party to the game, it pretty much becomes a public performance. As much as you would like it the other way, a DVR (or digital whatever device) that you don't directly control or own is a pretty shaky deal.

The only ones that get around that (just barely) are cable companies, as they are a licensee of the content, and the only access to the material is within their network. It's a closed loop system, with no "third party" per se.

It's a pretty simple concept, I am not sure why you cannot understand why it's illegal.
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Anonymous Coward, 2 Mar 2012 @ 1:06pm

Re:
So if I was rich enough to have a butler load my blue-ray player and control it for me when I had friends over watching renting movies in my living room, would I or my butler be breaking the law? Which one of us would be able to get sued by the studios?
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Anonymous Coward, 2 Mar 2012 @ 1:15pm

Re: What's a...
Well, just ask Jack Valenti: "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

The VCR is like a serial killer and Hollywood sucks at making analogies.
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Anonymous Coward, 2 Mar 2012 @ 1:31pm

Re: Re: Antenna on the roof...
So much win in this post. :)
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Anonymous Coward, 2 Mar 2012 @ 1:34pm

Re:
You might actually have a point if I had to pay for over the air signals, but I don't.

I can go to Al's TV Store and buy a TV, and an Antenna, and a cable. I can go home and set it all up. And I can start watching TV. Never once did I interact with the content owners/TV networks.
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Anonymous Coward, 2 Mar 2012 @ 1:35pm

Re: Re:
but but his example involves the internet!
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Anonymous Coward, 2 Mar 2012 @ 1:39pm

Re: Re:
So just to clarify. I have a 3rd party whom I pay to, among other things, go rent a movie for me put it in my player and control it while me and my friends watch it. And actually he is in the next room on the other side of a wall so my friends don't have to look a his poorness. That's legal? What if I have him and the movie player in the basement? Legal? Ok what if he is next door in my guest house with a physical line running from that house to mine? Legal!? Ok if he is at his house in the poor neighborhood and my TV is hooked to the internet and he control's it from his shack? Illegal? Oh cool so it is just the length of the cord.

Can we get an exact length so all the poor cord manufactures don't get sued for making infringement paraphernalia?
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Anonymous Coward, 2 Mar 2012 @ 2:20pm

Re:
For $35 bucks anyone can build a media center now.

Robert Mullins, Co-Founder, Raspberry Pi Foundation Introduces Board B by element14 on Feb 28, 2012

Some of these days people will realize that they don't need TV and can just pool all of their media and stream it to each other.
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JEDIDIAH, 2 Mar 2012 @ 2:25pm

Money for nothing while being done a favor.
He can't understand it being illegal because no actual harm is being caused. No measurable effect is being caused except perhaps for a positive one. There's really no good reason for this sort of thing to be illegal.

If it's illegal, then it's certainly not the first pointlessly damaging law we've seen here.

Re-broadcast of an unencrypted broadcast signal should require no license PERIOD. Consider it part of the FCC mandate and the requirement that broadcast stations operate in the public interest consuming public resources.

The fact that conventional cable operators are being victimized by this nonsense makes it no less wrong.
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Andrew F (profile), 2 Mar 2012 @ 2:51pm

Re: Money for nothing while being done a favor.
Exactly. Legal or not, this is a really silly suit. As I understand it, Aereo is also rebroadcasting all of the ads as well as the other stuff. They're increasing the value of the broadcaster's content, for free.
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Anonymous Coward, 2 Mar 2012 @ 2:51pm

Re: Re:
Wow thanks for reminding me about that. I remember them talking about these about a year ago. A desktop computer that is smaller then my phone :)
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JarHead, 2 Mar 2012 @ 3:01pm

Re: Re:
Common sense agrees with you and the 1st sale doctrine there. I bought it so I can do anything I please with it. However, I'm still fuzzy about what "buying" a DVD means, is it a sale, or license. Us consumer think it's sale, but the other side say license. If they think sale, what the heck does public/private viewing distinction is there in the 1st place.

About the update that places restriction on 1st sale doctrine, can anyone provide a link? I'd like to know who I should hit in the head with a sledgehammer for it.
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JarHead, 2 Mar 2012 @ 3:22pm

Re: Re: Re:
For an IP maximalist, your analogy is breaking the "law" on 2 counts. 1st is by what discussed here, length of cable/adding 3rd party to the mix. But you also bring in a 4th party, your friend. You might have bought the movie, which gave you the right to watch it. But has your friend bought that right as well?

The butler, to save tedious back and forth, also "watch" the movie if only to ensure the equipments are working properly for your pleasure. Has he paid the right to "watch" it as well?

So, one way or the other, the 3 of you are breaking the "law".

/sarc
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Franklin G Ryzzo (profile), 2 Mar 2012 @ 3:42pm

Re: Re: Not about the length of the cord
This!

Aereo is doing the networks a favor by letting their legitimate viewers watch their program outside of their home. They are helping the networks reach an audience that they themselves have chosen not to serve. Aereo charging a subscription fee is understandable as they have to pay employees and for bandwidth. The networks could be doing this themselves but choose not to.

What is really troubling to me is that PBS would be a part of this lawsuit?!?! The more people that watch PBS broadcasts, the greater the chance of viewers finding value in the programming and choosing to donate and support them. It doesn't surprise me when the normal troll dinosaurs freak out about things like this, but for PBS to join suit seems like they are only shooting themselves in the foot.
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Cynyr (profile), 2 Mar 2012 @ 5:17pm

Re: Re: Re: I am inching closer to hoisting the main sails
what about a pie that is made using rum? I'm thinking like apple pie with rum soaked raisins or some such.
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Cynyr (profile), 2 Mar 2012 @ 5:28pm

Re: Re:
as much as I want to endorse this, it only plays a limited set of h264, and doesn't seem to have an interface that will really let it play high bitrate h264 in mkv containers data wise.

It also doesn't do theroa, VP8, or mpeg4... anyways, it would be a fun toy, but i'd doubt i could get it to work as a media center any better than my PS3.
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Disgusted Citizen, 2 Mar 2012 @ 7:08pm

So let me get this straight. If I have a TV hooked up to an antenna(or cable box for that matter) and I have a camera pointed at it hooked up to my computer and I remote into my computer and watch the feed am I breaking the law?

What if I have the same scenario as above but instead of just remoting into my computer I remote into a computer that remotes into a computer that remotes into a computer that remotes into mine. Is that also breaking the law?
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hmm (profile), 3 Mar 2012 @ 2:03am

zediva
You know, technically the Zediva ruling ALSO made dvd players in your home illegal.

The DVD player can't just stream bit-by-bit copies of the movie to the TV as they'd both go out of sync.

Instead the DVD player has to make a "buffer" copy of at least 1 frame of the movie then send to the TV, then fetch the next frame.

Although in practice most DVD players will pre-buffer at least 1-2seconds of video to ensure audio sync is perfect and there is no skipping.
(also ensures if data is bad, theres a tiny window to re-fetch the data).

So, I wonder when the MPAA etc will be sued to stop them providing DVDs in wal-mart and other stores which "facilitate" this evil form of piracy?
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The eejit (profile), 3 Mar 2012 @ 3:37am

Re: Re: Re:
The MPAA think it's a license, exscept when it's not.
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The eejit (profile), 3 Mar 2012 @ 3:38am

Re: Re: Re: Re: I am inching closer to hoisting the main sails
You're looking for the recipe for Schedenfreude Pie. We don't have it here.
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Not an Electronic Rodent (profile), 3 Mar 2012 @ 4:17am

Re:
once you add a third party to the game, it pretty much becomes a public performance.

So when I capture a broadcast signal storing it on a hosted server via a VPN tunnel it's illegal because there's a 3rd party being paid for service, but when I do the same thing to another property and server I own it's not? Yeah that makes sooo much sense. Or perhaps you're going to claim both are illegal because the ISP that carries the VPN tunnel is a 3rd party service providor involved?

Or if one were to rent a DVR, which is essentialy what Aereo are doing, again you would claim it's illegal?
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Rick, 3 Mar 2012 @ 4:43am

Free Tv Channels
I Live In Florida put up a antenna and i'm able to pickup
72 HD channels over the air waves for free.If I wanted to stream them to my computer they would still be free.That
is like me walking outside to breathe the air if it is there and it is free where is the problem.
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deutch, 3 Mar 2012 @ 6:47am

there is one important piece that hasn't been mentioned yet...
Aside from the fact that they are aggregating content that is not theirs for later sale, this large issue at hand IMHO is the 'quarter' size antennas. Anyone who knows anything about RF antennas knows there is no way one of those tiny antennas you are renting would receive a decent reception. RF antenna design physics haven't changed that drastically which is why those 'internal' antennas you buy never really work quite well (fade, snow, cut-outs, etc.). All these network companies have the do is ask for one of these quarter size antennas to disprove that it would receive any real decent reception. If that antenna 'washing machine' is inside a Brooklyn data-center, there are even more objects impeding the signal strength. The only possibility would be to put that antenna 'washer machine' on the roof, and good luck with that. The more likely scenario is that they have a copper antenna on top of the building to augment the lack of reception these quarter size antennas draw...game over!
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The Infamous Joe (profile), 3 Mar 2012 @ 7:04am

Re: there is one important piece that hasn't been mentioned yet...
I'm not seeing anything here, except conjecture and a lack of knowledge about RF systems. Elaborate a bit on how this is relevant?
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The Infamous Joe (profile), 3 Mar 2012 @ 7:07am

Re: there is one important piece that hasn't been mentioned yet...
I'm not seeing anything here, except conjecture and a lack of knowledge about RF systems. Elaborate a bit on how this is relevant?
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deutch, 3 Mar 2012 @ 7:34am

RF gain is directly attributable to size of the antenna, among other factors. A quarter is very small and thus will have a very poor gain wich equates to poor reception. Beyond that, gain can be impacted or impeded by other objects (hills, buildings, etc.). You put this inside a DC and there are even more onject to impede gain. Hence the poor reception.
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deutch, 3 Mar 2012 @ 7:43am

It's absolutely relevant because if these quarter size antennas have awful reception, and they augment them with the buildings high-gain copper antenna then you are now not 'renting' your own personal antenna. There is one true-source antenna that is being shared. In essence, that would be no different than recording all content from the same antenna and then dropping that content into each paying subscribers RS-DVR.
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The Infamous Joe (profile), 3 Mar 2012 @ 8:06am

Re:
I missed the part where it's illegal to boost an unencrypted signal being transmitted over public airwaves.
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Anonymous Coward, 3 Mar 2012 @ 8:11am

I think, as long as the system is designed only to allow the legal users of said system to use it, what is the concern?
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deutch, 3 Mar 2012 @ 8:31am

Re: Re:
This is not boosting, but sharing/combining antenna signal strenght which constitutes a public viewing.
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The Infamous Joe (profile), 3 Mar 2012 @ 8:46am

Re: Re: Re:
.. And if I boost it into a room with a tiny antenna that picks it up...?
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deutch, 3 Mar 2012 @ 9:09am

Re: Re: Re: Re:
You need to receive a signal before you amplify (boost) it. So if there is one antenna receiving the signal with an amplifier attached to boost it to other smaller antennas, same problem...public viewing (one antenna sharing feed to other: -antenna or RS-DvR, doesn't really matter which one at that point.

There are a few other RF geeks over here debating the same thing: http://www.avsforum.com/avs-vb/showthread.php?p=21722235
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The Infamous Joe (profile), 3 Mar 2012 @ 9:41am

Re: Re: Re: Re: Re:
But, how is that illegal? I can do what I want with something transmitted over public airwaves, if it's not encrypted.
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deutch, 3 Mar 2012 @ 10:04am

Re: Re: Re: Re: Re: Re:
You know when you watch a sporting event and say something like, 'this broadcast is the property of X and can not be retransmitted, rebroadcast, or distributed without the express writen consent of...', Aereo would be breaking that law if they gather via one central antenna (and Boost as you suggested) and then 'distribute' (rebroadcast) to other antennas or RS-DVRs. Google 'public viewing' which is at the crux of this legal battle, along with wire length to the DVR apparently.
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The Infamous Joe (profile), 3 Mar 2012 @ 10:11am

Re: Re: Re: Re: Re: Re: Re:
That statement also says you can't *talk* about it.

Just because someone says something doesn't mean it's true.
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Anonymous Coward, 3 Mar 2012 @ 12:17pm

Re: Re: Re: Re:
Actually, it really is - you buy a physical disc, which is something you can resell in and of itself. However, the movie on it is only a license, not an ownership, aka you don't "own the movie", you just have purchased viewing rights. Licensed rights can be "non transferable" and stay within the law.

You could use your first sale rights to sell the disc... but you cannot legally sell the content on, so it's not happening.
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Timothy Smardin, 3 Mar 2012 @ 2:24pm

Aereo is DOA
The length of cord DOES matter. If you transmit from one place to another it is a public performance, and infringes copyright. Here's the details from copyright law...

Here is the definition of 'publicly perform' given in Section 101 of the Copyright Act:

To perform or display a work �publicly� means�

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

The first clause above is easy enough to understand, and is not at issue with Aereo.

It is the second clause above that is the critical one in the case. If you read the clause carefully, you can see why the the Broadcasters' are citing this clause in their lawsuit. Aereo concedes that they are transmitting and performing the Broadcasters' works based on the Copyright Act, which states that a public performance may take place at different places and at different times.

Any antenna, no matter the size, infringes copyright if works are transmitted from one place to another place.

In order to win the case, Aereo would need to persuade the District Court�and in all likelihood, the Second Circuit Court of Appeals�to adopt an interpretation of the public performance definition that differs from the cases up to this point.

Zediva died for this very reason. ivi has a chance. Cablevision's case was not related to public performance, since they are already a cable system, which has a copyright exemption (the same one ivi is fighting for), so Aereo has no chance of using the Cablevision case. Aereo is DOA.
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hmm (profile), 4 Mar 2012 @ 11:37am

Re: Aereo is DOA
>>to perform or display it at a place open to the public or >>at any place where a substantial number of persons >>outside of a normal circle of a family and its social >>acquaintances is gathered; or

so my own house is a public place and everything that goes on in it is a public performance?

I guess that explains why there was an audience the last time I was in the shower scrubbing my balls....

(I wouldn't have minded but as I got undressed they all started booing and several demanded their money back)
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Not an Electronic Rodent (profile), 4 Mar 2012 @ 11:48am

Any antenna, no matter the size, infringes copyright if works are transmitted from one place to another place.

By that rationale, streaming it to a home screen from your PVR over a wireless network is infringing or indeed showing it ON a screen since a screen throws off a signal strong enough to be received in "public" quite some distance away.
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Michael (profile), 4 Mar 2012 @ 2:11pm

Re: I am inching closer to hoisting the main sails
The best part of embracing the pirates is that when you have an entire world of media available to you, you realize how weak most new offerings really are. When the cream of the crop is available on a global scale, your desire to pay a premium price for mediocre material sinks to the bottom.

It's like discovering an independent, affordable produce market near your home. There is some effort involved in learning your way around, but you'll be better off, and fast food quickly becomes disgusting.
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Anonymous Coward, 4 Mar 2012 @ 5:13pm

Re: Re:
Actually, you wouldn't be breaking the law, because you would be doing it in your own home. That you (or your butler) happens to push the button doesn't really have any relevance.

The butler in this case isn't a third party, just a normal part of your (excessively rich) household.

Again, how hard is stuff like this to understand? Clearly Mike isn't the only one missing the boat here, the dock appears to be crowded with people who just aren't getting it.
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Anonymous Coward, 4 Mar 2012 @ 6:34pm

Re: Re: Re:
The butler isn't a third party? WTF? Do you think butlers are merged with the consciousness of their employers or something? Jesus, you sure do like twisting reality to suit your own concept of it.

No wonder you spend all your time on Techdirt. Nobody would talk to you in real life.
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snowburn, 5 Mar 2012 @ 9:33am

Re: Re:
I have no knowledge of the related laws, but it seems like Netflix, Blockbuster, etc., have to wait a month after dvd release to rent out certain titles. Are they just getting a discount that the studios won't give them if they don't agree to those terms? I always assumed they were waiting for the studios to grant them license to rent them out...
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Anonymous Coward, 5 Mar 2012 @ 11:25am

Re: Re: Re:
"Actually, you wouldn't be breaking the law, because you would be doing it in your own home. That you (or your butler) happens to push the button doesn't really have any relevance."

It does because you just proved the point. It is all about the length of the cord. If I am paying someone to push the buttons for me why was Zediva illegal? Because the person hitting the buttons was on the other side of the internet instead of the other side of a wall?

"The butler in this case isn't a third party, just a normal part of your (excessively rich) household."

He is a 3rd party. He is being paid to remotely control my DVD player.

"Again, how hard is stuff like this to understand?"
It's hard to understand because it has no precedent. No one would start companies to provide these services if they were clearly illegal. But I guess you are smarter than the founders, their lawyers and their investors combined.

Taking something someone has all the right in the world to watch on their home and providing a service that lets them watch that exact some content remotely should be legal. They are not stealing and reselling the content, they are providing a service and adding a feature to the content the end user already has the rights to.
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Mark, 5 Mar 2012 @ 3:19pm

Re: Not about the length of the cord
Actually, you are correct. If this was a way to enable me to view the content, they might have some kind of argument that it was some kind of public good instead of copyright infringement. It's a paid service, however, that's transmitting copyrighted content they don't have access to and charging money for it. Cable and satellite cos. also pull the signals down via antenna (well, fiber feed, but they used to use antennae) and pay for them.

Aereo's claim is ridiculous, I'm afraid. There is no hope in Cablevision, because Cablevision had licensed 100% of the content.

This isn't about whether the law is good (it isn't), it's about whether it's the law.
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ritchiep, 5 Mar 2012 @ 7:19pm

it's a public performance and therefor has no shot
Let's put it this way: if the source of the transmission is outside the home, apartment building or business, it's considered a public performance.
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Anonymous, 13 Mar 2012 @ 4:55am

Issues
Mike, you know me and I know you, but I am more comfortable typing this anonymously on a public forum. There are a few key issues - Is there a reproduction? If there is, "who" makes it?. Is there a "performance"? If there is, is the performance to the "public"?

If you exclude Aereo's DVR functionality, there is probably no "permanent reproduction". Of course, there will be tiny bits reproduced that might be considered too "transient". Regardless, Aereo is not "making" the copy - it is the user's volitional conduct that makes the copy (See Cablevision, RecordTV, Singtel Optus precedents). With regard to the transmission - it is probably not a "public" performance. Each user is transmitting it to himself, so it is many, many "private" performances, but not a single public performance. Aereo, is actually very well placed, in my opinion, from a legal perspective.

Two things are likely to be questioned:
a) If a user plays back a recording in a bus, is it still "domestic" use. This is a tricky question, and courts have not ruled on it, except for the Singtel case.

b) The post-processing, and encoding of the video. Plaintiffs will try to argue that post-processing makes them the ones "doing" the recording. This argument has failed several times (Veoh, Youtube etc.)

All in all, I think Aereo has a good shot - if and only if they can keep fighting. That said, they may face a temporary or permanent injunction while the issues are being considered. Remember, Zediva just had an injunction and the merits were not fully evaluated in that case.
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