Judges Realize Aereo's Setup Is Insane Technologically... But May Get The Wrong Message Out Of It
from the that's-unfortunate dept
A few months ago, we wrote about law professor James Grimmelmann's awesome article about how copyright law for media streaming was completely insane from a technological standpoint:Suppose I could offer you a choice of two technologies for watching TV online. Behind Door Number One sits a free-to-watch service that uses off-the-shelf technology and that buffers just enough of each show to put the live stream on the Internet. Behind Door Number Two lies a subscription service that requires custom-designed hardware and makes dozens of copies of each show. Which sounds easier to build—and to use? More importantly, which is more likely to be legal?The issue, of course, is a series of lawsuits that have really only displayed how copyright law written for legacy technologies has no idea how to deal with streaming media. After each one, companies try to figure out how to make a legal service, which seems like a noble goal. However, because of all the ridiculous specifics in rulings where judges contort themselves to come up with a way to fit a ruling into their preconceived notions of what's legal and what's not, the end result is that if you want to design a legal service, you have to set up a truly twisted and confusing setup... like Aereo's.
If you went with Door Number One, then you are a sane person, untainted by the depravity of modern copyright law. But you are also wrong. The company behind Door Number One, iCraveTV, was enjoined out of existence a decade ago. The company behind Door Number Two, Aereo, just survived its first round in court and is still going strong.
That issue has come up in the appeal on the district court Aereo decision. The TV networks are trying to convince the appeals court that the lower court was wrong. There was a lot of focus on trying to distinguish Aereo from the same court's ruling in the Cablevision case four years ago, which said that a remote DVR offered by Cablevision was legal. However, apparently there was an interesting exchange in which the judges seemed to realize that Aereo's setup was technologically insane:
The judges also questioned Hosp on why Aereo needed to have all those antennas. "Why not one? Is there a technological reason? Any legitimate business reason?"Aereo's lawyer, David Hosp, admitted that the reasons were legal. This is the point at which people should realize that this demonstrates one of the many ways that copyright law is broken, because it forces companies to go through all sorts of convoluted technological decisions to deliver the same experience that could be delivered much more easily and efficiently otherwise. Instead, the judges seemed concerned in the other direction, that if the decisions were done for a legal reason it was somehow a sign of ill-intent:
One judge also observed, "You say your model is built around Cablevision. Isn't that like organizing your business affairs to avoid taxes?"That, of course, is a ridiculous analogy -- and thankfully Hosp responded correctly: following what the court said was legal in earlier cases isn't about "avoiding" anything, it's about following the court's instructions on how to stay legal!
"The plaintiffs say it is a bad thing to follow the law," he said. "I believe the 2nd Circuit got it right in attempting to strike the right balance between public and private performances that lawmakers wanted."Anyway, it wouldn't be surprising to see the court overturn the district court ruling, no matter how ridiculous a result that would be. It really feels like a lot of these cases are judged based on a judge deciding what he "feels" should be legal, and then trying to work in a justification later.
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"Anyone may arrange his affairs so that his taxes shall be as low as possible; he is not bound to choose that pattern which best pays the treasury. There is not even a patriotic duty to increase one's taxes. Over and over again the Courts have said that there is nothing sinister in so arranging affairs as to keep taxes as low as possible. Everyone
does it, rich and poor alike and all do right, for nobody owes any public duty to pay more than the law demands."
Anyway if the judges in this case are going to use the tax analogy, Aereo's lawyers should say there is no public duty in arranging their business to pay more the plaintiffs.
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Since when is copyright supposed to be sane?
Extortion of mass joinder of defendants with no intent to actually litigate.
Life of author plus ridiculous number of years.
Collection societies collecting for works they don't even own.
Multiple collection societies collecting for the same work.
Rights sliced and diced so microscopically fine that you cannot exercise one right without infringing another right.
Internet radio at different rate than Satellite radio than real radio.
All this designed to prop up obsolete dinosaur gatekeepers that screw authors and artists on one end while screwing consumers on the other end while providing no substantial value to either.
Bogus DMCA takedowns without penalty. Disruption of legitimate businesses under color of alleged copyright infringement.
Videos of people's children or cats taken down due to some incidental poor quality audio in background.
Videos of birds singing in nature taken down.
Yet, the expectation that Google can magically determine infringement, when even the owners' representatives seem unable to determine whether actual infringement exists.
Needing 10,000 antennas to provide freely broadcast tv.
A DVR is legal, but a remote DVR is not.
People cannot play music at their wedding. Mechanics cannot play the radio in their garage.
Extraditing a kid who has broken no laws in his own country, and hosted no actual content, only links.
SOPA, ACTA, etc type insanity -- nevermind that the DMCA now seems reasonable by comparison.
Movies or TV shows that cannot be distributed because of music copyright mess.
Suing of Diamond Rio because the very idea of a solid state mp3 player should be illegal.
Righthaven style subcontracting of ligitation against actual fair uses of material.
Authors who go on a which hunt resulting in the takedown of an ebooks site that doesn't pirate material, but actually encourages purchase of those authors' own ebooks.
Increasing use of "copyright" and DMCA as some kind of magical sword that silences anything that anybody anywhere doesn't happen to like, even if it has nothing to do with copyright.
Six strikes type laws, but not for those who file the bogus DMCA takedowns.
Trolls who sling mud without making any arguments of substance.
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Heard this before
This whole argument is downright stupid. First off, there really isn't such a thing as a "legal grey area". Something is either legal or it isn't. Period. Until a court or legislative body declares something illegal, it's legal.
And the whole "cheating" part is just plain silly. It's like saying that using the US Tax Code to get an extra couple of bucks on your Federal refund is "cheating".
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It's you who mis-read a bad business model:
IF your biz requires technological contortions to be legal, then that's the problem. Copyright, as you sometimes mention, is a granted monopoly, so grifting around it is difficult. Don't invest in that model, then. Let the poor consumers "suffer" for lack of whatever crap this is.
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Re: Heard this before
Indeed. What the argument is literally saying is: if you modify your behavior in an attempt to comply with the law, you are clearly a criminal.
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Mike Mansick, I hope you got my story submission just now, it's extremely important to both my Wife and I that word gets out about the up and coming changes to the DSM.
If not just make an article as I have my submission about it coppied and pasted in case I need to turn it into a comment.
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Like, though periodic charity donations?
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Re: It's you who mis-read a bad business model:
Exactly.
however: "grifting around it is difficult"
is not at all true. grifting around it is bloody simple. The technological contortions are only needed to try to follow it. Thats the whole point.
If they were contorting to get around the law, the law makes things difficult for criminals. Since they are contorting to follow the law, the law makes things difficult for law abiders.
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Re: Since when is copyright supposed to be sane?
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Re: It's you who mis-read a bad business model:
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Re: It's you who mis-read a bad business model:
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Correct answer: "Yeah. So?"
The tax code employs loopholes for lots of reasons, not one of which is, "This loophole is being added to the tax code, but if anyone uses it they are naughty-bad."
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Re: It's you who mis-read a bad business model:
Agreed! And since the legacy players are protected by the law, they obviously know the market the best so they are best poised to judge the contortions!
This is why, despite all the crazy talk on here from people who have never made a multi million dollar media empire, that the current system works and serves the customers optimally. Which is why piracy is nonexistent....oh wait.
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Uh.... no. The district court had geographic jurisdiction. Appeals go to the circuit court in which the district is located. Next stop is the Supreme Court- if they wish to be involved.
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Re: Heard this before
The problem with the tax code is that there are a number of places where things are open to interpretation; those are certainly "legal grey areas" since which examiner you get during your audit/colonoscopy results in whether you chose right or not.
Once a system gets complex enough (taxes, law, even coding); once you have "interpretation" you get into "grey areas" (legal or not is just a point of view from there...)
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Since broadcast channels are some of the most desirable channels by a majority of mvpds customers, most stations choose re-retrans fees.
http://www.fcc.gov/guides/cable-carriage-broadcast-stations
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Re: It's you who mis-read a bad business model:
Here go watch Space Janitors is just brilliant.
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Re: Re: Re: Since when is copyright supposed to be sane?
Burma Shave
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Re: Since when is copyright supposed to be sane?
All these copyright exceptions... and rationalisations... and obscurities... and ridiculous concepts that a child could see through.
Am I the only one here sane enough to call upon Occam's Razor, and say that the simplest explanation is probably the best one: get rid of copyright law, and see how the Darwinian evolution of business models finds ways to give creators incentives without government subsidised monopolies?
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Re: Since when is copyright supposed to be sane?
great stuff...
i think something like a timeline or some other infographic of these outrageous actions would make a great poster to reverse-propagandize the sheeple...
again, good rantings...
art guerrilla
aka ann archy
eof
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I think we need a new companion phrase to "Felony Interference with a Business Model" - Felony Compliance with Legal Statutes.
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Re: Since when is copyright supposed to be sane?
Installing a Root-Kit on the boot sector on your hard disk to refrain you from ripping your CD into an MP3 format.
Installing DRM on your computer without knowledge or conscent and then after 3 reactivations of your game...which occurred as one activation/renewal per every 3 month time period after you install it thus turning your game into a shiny coaster for your PC's desk.
Allowing you to "buy" a movie on a proptietary format but not having it work after 48 hours after its first use (DIVX http://en.wikipedia.org/wiki/DIVX).
Watermarking any ripped CD music so that it cannot get transferred from one device to the next without some irreparable harm coming to the audio file itself.
Blacking out sporting events from users renting DVR cable boxes.
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Re: Since when is copyright supposed to be sane?
Because if that's the case.. there is a nice padded room with soft music (and lots and lots of trippy drugs) waiting for you. For your own protection of course
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During the public hearings for this inquiry he was asked point blank about his Tax minimisation schemes his reply echoed through the corporate world, pissed off the Tax Department and Govt, but is quintessentially Aussie and should be tattooed onto EVERY TAX PAYER's HEAD WORLD WIDE
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Minimising your taxes is prudent. Seriously contorting to avoid paying any (or only a tiny percentage) is taking the mick. Especially if you wish to make use of those perks granted by being in a civilised country like roads, police, fire services and a general rule of law.
With regards to Aereo, if the end receiver doesn't need to pay to receive the channels, why should Aereo have to pay to 'format-shift' transmission?
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Yes, because all judges--like His Holiness Michael Masnick himself--should start with their conclusions and work their way backwards. Only Mike the Perfect could invent a legal system that anticipates things that don't even exist yet. I hope that one day everybody on this planet is as perfect as Mike. He tears apart everything and everyone so perfectly, yet is so completely to respond like an adult to even the slightest, most simple criticism of himself. Such awesomeness, sadly, will probably never manifest itself in a human being ever again.
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Creating Facts
Come to that, a bank safe-deposit box is fundamentally inefficient in mechanical design. It is designed to implement a chosen legal relationship, to make the banker a landlord instead of a "bailee." The tenant has a key to secure the box itself, not a very burglar-proof key, but good enough to create the offense of burglary. The bank controls the outer door of the vault, and doesn't have to take general responsibility for the contents of the the safe-deposit box.
I was reading an article in Trains Magazine about the Auto-Train, which moves passengers and their automobiles between the Washington D. C. area, and Sanford, Florida, just outside of Orlando. The typical customer is a "snowbird" going south for the winter, who isn't up to the long drive, but wants to take his automobile with him to drive around in Florida. Amtrak is a bailee in respect of the automobiles. An Amtrak employee (*) gets in the passenger's automobile, and drives it onto a railroad transporter car, and parks it. Amtrak takes pictures of every automobile being boarded which has any damage, so that they can prove, at need, that they didn't do the damage. And the same business at the other end. The railroad is responsible for getting the automobile onto the transporter car, and off again, without it getting dented.
(*) With typical railroad romanticism, Amtrak chooses to call this employee a "hostler," a hostler traditionally being the locomotive engineer who drives a steam locomotive from the "roundhouse, the locomotive repair and servicing facility, into the station, and hooks it up to a train.
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Cable? You pay extra for broadcast channels. Its wrapped up in the bundle fees.
Satellite? You pay extra.
Even Aereo charges for access to those channels.
Only difference is Aereo isn't paying re-trans fees, and that pisses of networks, and mvpds who have to pay.
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Go Go Aereo; just renting HW from 3rd-party without retran. rights
You can rent DVR, antenna, TV, mobile device, etc. from 3rd parties, hotels, etc. (entities with no retransmissions right of any kind).
i.e. neither rent DVR from a cableco. nor purchase a DVR.
Even renting DVR from cable/sat. co., you can DVR many more local over-the-air broadcast stations: MUCH more local stations than cableco has any retranmission rights for.
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