Judge: Aereo Case Was Decided Incorrectly, Because I Don't Like Previous Ruling
from the interesting-legal-theory dept
Back in April, Aereo won its appeal, saying that its system to allow people to watch broadcast TV over the internet, via an individual antenna (each customer gets their own antenna) is not infringing. As we've said, this is basically an argument of whether or not the length of a cable turns non-infringing activity into infringing activity. Everyone agrees that it's legal to put up your own antenna and watch broadcast TV. For the most part, it's recognized (though not universally agreed) that you can "place shift" the authorized TV that you watch to another place. This is basically what Aereo was doing. But, the networks, completely freaked out that this might mean the very large fees the cable providers pay them for retransmission might go away, insist that this must be illegal, because, basically, they really like the money they get from cable companies and anything that takes away that revenue stream must be illegal. Except, both the district court and the appeals court rejected that, in large part relying heavily on the important Cablevision ruling, which allowed Cablevision to offer a remote DVR service to its customers.The networks, of course, asked the appeals court to rehear the case en banc (with a full panel of 11 judges, rather than just the 3 who heard the case initially). That's now been rejected, but Judge Denny Chin, who has a bit of a history siding with the TV guys against upstart innovators is pretty upset about this. Chin was the dissenting judge in the original ruling on Aereo, and he's also the judge who ruled against ivi -- a startup that tried to do something somewhat similar to Aereo, but through different means. Also, before Chin was on the appeals court, as a district court judge, he made the original ruling in that key Cablevision case, in which (shocker) he sided with the networks over Cablevision. In other words, every time this kind of issue has come up, Chin sides with the broadcasters and against the innovators.
Chin's dissent from the decision to reject an en banc rehearing is quite incredible. I saw someone quote the following line, which I had through was a joking paraphrase of Chin's argument, but this is verbatim from the dissent:
Aereo's reliance on Cablevision is misplaced because, in my view, Cablevision was wrongly decided.That's a fairly startling admission. Here's a precedent, and the judge is saying that the company can't rely on the precedent because he doesn't agree with the precedent. That's not how this is supposed to work. Yes, Chin may have had his feelings hurt because the appeals court overturned his original ruling in Cablevision, and now the other judges have gone against him, but that does not mean he gets to simply ignore the ruling because he doesn't like it.
Most of Chin's dissent is basically a close copy of the networks' arguments, which is, again "the networks make money this way, and how dare some company undercut their business model." This is kind of weird. The very nature of disruptive innovation is that it often undercuts existing business models. But that's called competition. It's not supposed to be illegal. Chin also approvingly cites his own ruling in the ivi case, where he accepted -- without question and with no factual basis beyond the claims of the networks -- that allowing such startups to thrive would harm their rights.
But, the crux of his argument is simply that he's feeling hurt that his Cablevision ruling got overturned, and even if it's precedent, Aereo shouldn't be able to rely on it, because Chin wants to overturn it:
The panel majority's decision is based entirely on Cablevision. In my view, however, as some of the broadcasters argue, Cablevision was wrongly decided. Of course, I was the district judge in Cablevision, and I recognize that the panel was bound by the Court's decision in Cablevision, to the extent the decision is controlling. But rehearing these cases en banc would also give the Court the opportunity to reconsider Cablevision.Basically, I lost last time around, and even though Aereo is relying on the winning side, that shouldn't be allowed, because I'm still bitter that I lost, and I'd like to overturn Cablevision first, and then use that to shut down Aereo too.
It's difficult to see how this is an unbiased judge, looking at these cases impartially.
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Filed Under: copyright, denny chin, retransmission
Companies: aereo, cablevision, ivi
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First they tried to play by the rules, and they lost big time.
Now they are on to plan B: try to change the rules so that they can win no matter what.
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You're misreading it, Mike. Judge Chin is saying that the en banc court should have taken the case since only the en banc court can overrule Cablevision. He ALSO thinks that Aereo DOESN'T fit into the carve out made by the Cablevision. It's not that he thinks Aereo isn't permitted to follow Cablevision, it's that he doesn't think they actually did follow Cablevision.
Most of Chin's dissent is basically a close copy of the networks' arguments, which is, again "the networks make money this way, and how dare some company undercut their business model."
That's not at all their argument. Their argument is that Aereo is engaged in a public performance, and as such, it is required to pay a licensing fee to not be infringing.
Basically, I lost last time around, and even though Aereo is relying on the winning side, that shouldn't be allowed, because I'm still bitter that I lost, and I'd like to overturn Cablevision first, and then use that to shut down Aereo too.
Again, Chin goes on at length about how even though Cablevision is binding precedent, Aereo doesn't fit into the carve out created by that ruling.
Your read of this case is really quite silly. It's amazing how you write about this ruling but never actually discuss the law.
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What's actually going on?
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Actually when the discussion started turning around the length of the cord argument it became difficult to see how anybody looking at the case was sane at all.
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Re: What's actually going on?
Pretty straightforward.
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Most judges = a politician in a black robe
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State Priest...
He has no market incentive to act in the consumer's best interest, as the State religion has granted the judicial system a monopoly.
I would prefer to see the State's judicial monopoly abolished and replaced with completing dispute resolution organizations.
This way, if a man in a black moo-moo such as the judge referenced in the story acts in such a manner (ignoring precedent), then individuals can take their business elsewhere to more reputable dispute resolution organizations.
I prefer consensual relationships and voluntary exchange.
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Which is a nonsense argument, as the 'public performance' is to a single person, in their home. Where exactly is the 'public' aspect to that 'public performance'?
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He also discusses why Cablevision should be overturned in section 3, for about fourteen pages.
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Re: What's actually going on?
If you were to go out to a hardware store, buy an aerial and link it to your computer (using a capture card), no one would bat an eye and say you should pay a public performance fee to receive public broadcasting. Your aerial is receiving un-encrypted broadcasts and you're capturing them.
Aereo sets up an individual aerial for each customer who subscribes. These aerials are much the same as you yourself would buy, they do the exact same thing, receive un-encrypted broadcasts. These aerials then stream the shows to your computer, so you don't need to actually go to the trouble of setting up an aerial yourself. Aereo could have had just the one or a few aerials to pick up the broadcasts and then streamed them all, but in order to comply with copyright law, they had to get individual aerials for each customer.
It is essentially the same thing as having your own aerial at home. The only difference is you're paying a separate company to house it on their building and stream it to you over the internet. They're picking up the exact same signals as you would do if you had installed the aerial yourself. The only thing that has changed is the length of the "cable" from the aerial to you. Instead of being on top of your house, it's now miles away. Yet somehow, some people are saying Aereo now owes public performance fees, despite the fact that each broadcast is captured individually and broadcasted individually to each customer
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Because once it goes over the internet, it's seen by the NSA and its tens (hundreds?) of thousands of contractors. ???
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butt hurt
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Re: Re: What's actually going on?
Dude. Seriously.
Your fifteen year-old nephew wouldn't just be batting his eyes—your fifteen year-old nephew would be roflmao! Because, dude, you are a total klutz. You couldn't hook an aerial up to your computer without dropping a heavy object on your foot. At the very least, you would be trying to put the capture card in the CD tray, and trying to plug the antenna in where the speakers go. You are a total klutz. And your fifteen year-old knows knows it.
Get some help. You know his telephone number. Plus the kid needs some pocket money.
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Re: State Priest...
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We need to audit those antennas.
The bad decision needs tossed out on more fundamental grounds: that Aereo is sheerly grifting off content it doesn't pay for.
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Re: We need to audit those antennas.
More importantly, this *increases* the numbers of viewers for a TV station. How is that in any way BAD for them?
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Ok, they loose on that count too. any other arguments?
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I suggest reading Judge Chin's dissent in the panel opinion (starts on p. 36 of the PDF): http://www.ca2.uscourts.gov/decisions/isysquery/c5ae16d1-5211-4c66-a4d5-1c0c1bd1efda/1/doc/12-2786_1 2-2807_complete_opn.pdf
Also read his dissent in the denial of rehearing en banc which Mike embedded above.
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Chin feels that a court overruled him wrongly and cites both statute and other precedents to support his point. He cites two pieces of rationale as to why an en banc rehearing is appropriate: summarized, because the question is really important (anybody disagree with that here?) and to improve the consistency of the court's decisions. He points out why he thinks Cablevision was inconsistent with previous decisions, as well as the statute. You make no argument here as to why this is wrong.
Techdirt articles argue all the time that certain court decision are wrong. Sometimes the argument is similar (ignorance of precedence, misapplication of statute). Of course, the real reason for these arguments is for a reason just as capricious as Chin is being accused of - general disdain for IP law. You would never find an argument here in support of reconsidering a decision that weakened copyright, regardless of how inconsistent it might be with precedent or statute.
So instead of arguing against Chin's (actual, not imagined) arguments that an en banc hearing is appropriate, Mike argues against his motivations. Whether his arguments are right or not takes a clear back seat to why he was making the arguments in the first place - which is idle speculation. It's a subtle ad hominem attack disguised as some sort of legal analysis.
Worse, Chin is being impugned as being biased for, as best I can tell, ruling consistently on a number of similar cases. I guess consistency is jurisprudence when Mike agrees, and bias when he doesn't...
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Sensationalist Post is Sensationalist
Judges are always expressing their legal opinions, given that they are, in fact, opinions. He just wants the ENTIRE 2nd Circuit to decide once and for all whether or not Cablevision is good law and, if it is good law, whether Aereo can be used.
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EDIT to previous post
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The reason it's a "Rube Goldberg-esque" setup is so that Aereo can stay legal, within copyright law. Of course their setup is technologically unsound, if copyright law were saner, they could have the one aerial and use that for all their customers.
They are receiving the exact same over the air, unencrypted broadcasts that a home user with his own aerial receives. So why is that they should be expected to pay public performace fees? The broadcasts are unencrypted, there is no attempt by the broadcasters to actually restrict who is and is not allowed receive their broadcasts.
I also love the example of the Superbowl. Not that I'm a sports fan, but wouldn't something like that be an ENCRYPTED broadcast, requiring some sort of set top box to de-crypt the broadcast, while also having in their contract a clause saying no re-transmission?
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Re: Re: Re: What's actually going on?
1) You try to insult my intelligence, and fail completely. Where I'm from, insulting is an art-form and I yawned at you wrote. Try harder next time
2) I have one nephew, and he must be what? 5, 6? Not fifteen.
3) I certainly can hook up an aerial without any trouble. I've built computers from scratch, and know precisely where the capture card goes. There is no way I would be stupid enough to try and put it in the CD tray, they go in PCI-E slots on the motherboard.
So next time, stop projecting your own failures (it would be extremely likely for you to have put the capture card in the CD tray) onto me and try harder at the insults next time.
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Re: We need to audit those antennas.
That said, advertisers are paying for that content. So the content has in fact been paid for. The content is effectively free for the person who owns the antenna, courtesy of advertisers. Charging Aereo would be double-dipping.
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Re: We need to audit those antennas.
How does one steal an unencrypted broadcast? This would be like you standing in the middle of a street with a guitar, playing a song, then shouting "THIEF! THIEF!" at everyone who didn't pay, whether or not they wanted to listen to you. They have no choice but to hear what you're playing. Same with broadcasting. Unless I'm wrong, there's no way for a broadcaster to directly check how many people are receiving his broadcast (if the receiver sends back information like with packets over the internet, please inform me)
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I have a house, a computer and a TV. I go out to a store, buy an aerial, leave it on the roof and run a cable from it to my computer and/or TV. I receive broadcasts, which are unencrypted (which means there is no reason for me to pay for a subscription to get the decrypt key) and I watch them. I am not required to pay public performance fees.
Now let's say my landlord stops by and reminds me that in the contract I signed with him, there's a clause saying no aerials. Fine. I go next door to my friend, who luckily enough has no such clause in his contract. We work out a deal, I place the aerial on his roof, run the cable from there to my TV. To compensate the neighbor, I give him a few bucks a week or a month. No need to pay PP fees.
Now let's say, I'm moving house but I don't want to lose access to those broadcasts. So I help the neighbor set up a computer with internet access, run the cable from the aerial to a capture card in the computer and then I, from somewhere else, can simply log on to the computer and access the broadcasts.
The broadcaster doesn't know I've moved. He cannot know. Why must I, the viewer, have to be physically in the house in that area to receive the broadcast, when with a computer and internet access, I don't have to be?
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Cable or airwave broadcasting is exactly that a broadcast to multiple recipients much like a TV station broadcasts a signal over the airwaves to multiple receivers or hands it off to cable rebroadcasters. The signal reaches multiple viewers through their receivers (antenna or cable box).
The DVR function in Cablevision decision is again an individual function. It is not rebroadcast to multiple recipients but is for the personal use of the subscriber much like a VCR and therefore not like a signal broadcast over the air or a cable.
Aereo also is not broadcasting but delivering a signal over a wire (virtual internet channel) to one subscriber it is not broadcast over the internet to multiple receivers. This is where Chin is confused with technology and shows his complete lack of understanding of the technology.
It would be like wireless speakers that deliver sound to the headphones of a person that is a variable distance (maybe even walking around in his home) away from the actual signal transmitter and therefore there is no claim by copyright holders. Now if the wireless speaker was set up with enough power to deliver the signal to a neighborhood it would be broadcasting (think radio) a public performance and the copyright holders would have a claim.
Chin is confused over the term 'broadcast' and what it means in a legal sense versus how the term is used in a technological sense. Many times we use the term technologically to indicate that a signal is being transmitted to a receiver. Whereas in a legal sense it implies transmitting a signal to many receivers (a public performance) not just one individual.
So bottom line IMHO... Chin is nothing more than a 'big media' shill...
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Re: Judge Chin
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It is really funny, the broadcasters are basically saying, we can go out of business faster if we cut out our audience.
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With good reason. He may start out sane, but by the end of the discussion, he always devolves into an immature, trolling, lying brat.
http://www.techdirt.com/articles/20120818/01171420087/funniestmost-insightful-comments-week-t echdirt.shtml#c1210
He's also the same A.C. that kept posting idiotic "milk! moo! cluck! bawk!" comments, on every single story, regardless of content. You can see examples here, here, here, here, here, here, and probably on a dozen more stories.
In other words: his posts are flagged because he is a bad actor, who has no interest in discussion, and whose only purpose in being on this site is to be disruptive and derail the conversation.
He also has a history of sock puppetry, so I wouldn't be surprised if you are him.
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It's Techdirt, so dissenting views are unwelcome.
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LOL! And yet I'm here, making salient points and attempting to engage in a substantive discussion on the merits. I'd love to discuss Judge Chin's arguments. Too bad Mike would rather just attack the judge personally and move on.
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So let's consider the performance as a whole, then. We'll go step-by-step and see where this supposed infringement happens.
1) Fox broadcasts an unencrypted in-the-clear transmission to everyone with a TV antenna in a wide geographical area.
2) Millions of antennas recieve this bradcast transmission. Aereo runs thousands of them that all individually recieve that transmission.
3) Aereo assigns each individual antenna to an idividual user of its service. Aereo assigns these antennas based on the location the user resides (same broadcast footprint as Fox is transmitting to).
4) Aereo transmits the signal received by an individual antenna to the individual user it is assigned to over the internet.
5) Individual user recieves the transmission.
Now, which step is where the infringement occurs?
I think that setup is insane and inefficient. Nearly everyone else does, too. But I'm not the one arguing for insane copyright laws that make that insane setup required to stay within the law. That's all you.
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Most People Just don't understand technology.
Suppose, half way in that cable I place a DVR. Still legal.
Suppose, instead of on my roof, I mount the antenna on a tower, at the far end of my property, say a mile away (I wish), still legal.
Suppose, instead of buying the antenna, and DVR, I lease them, because I can't afford the cost. Still legal. Still not a public performance, still not violating copyright. Etc. Still not stealing anything.
Now, lets say that my property is small, but I lease another property one mile away, and run the cable on leased poles. Is this still Legal? If so, then so is Aereo. This is not a Rube Goldberg scenario, this in reasonable.
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But there's something about associating an "upstart technology company" with Barry Diller, an old get-over artist and huckster, that feels odd. Maybe it has to do with basing your entire business model on the world's narrowest loophole; if you were in it for the long run, you'd try to create a more durable product, one which doesn't evaporate if the law, or technology, makes about a 1-degree change in course. I'm thinking he's got a walk-away strategy all planned.
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Wow.
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We've discussed this before. You asked the same question, and I gave you the same answer. The difference is that Aereo retransmits the signals to the paying public. Operating such a service makes one a retransmitter engaged in making public performances. People are not transmitting the signal to themselves. Aereo is retransmitting it to them.
I also love the example of the Superbowl. Not that I'm a sports fan, but wouldn't something like that be an ENCRYPTED broadcast, requiring some sort of set top box to de-crypt the broadcast, while also having in their contract a clause saying no re-transmission?
I believe the Super Bowl is transmitted OTA just like any other show the networks air.
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I love how your post asking about the other post that was censored is itself now censored. Ah, Techdirt. Nowhere is a dissenting view less welcome. Congrats, Mike! You've got quite an awesome place here! So closed-minded and afraid.
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As for Superbowl, I'll have to admit that I don't know for sure whether or not broadcasts of that are unencrypted over the air. Given the nature of television stations, I'd be surprised if they were unencrypted.
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Agreed, they are a re-transmitter. But you incorrectly just stuck on the 'engaged in making public performances' part and glossed over the whole point. You are incorrect, the transmissions are not public.
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Here's your problem. If I broadcast a signal so that multiple people and machines can capture it, that would be a public broadcast. That's where the public in public broadcast comes in.
Aereo isn't. Each and every broadcast is individual to the individual customer. Only one machine is capable of receiving each separate broadcast. Therefore, it is NOT a public broadcast.
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Mike has been desperately blocking IPs, MACs, keywords, links, etc. all in a futile attempt to prevent me from criticizing me. That's censorship. It's child's play to get around his censorship, hence, you're reading what I say. Don't believe that Mike is doing all of that? Just ask him. I doubt he'll answer though. Regardless, the fact that he's not denying it should tell you that it's true.
The other censorship here is in hiding posts via the "report" button. That's a soft censorship tool since, as you note, people can still click through and see the post. But it's being used to make it more difficult to see dissenting posts because of disagreement with the points being made. It's not being used to block spam, as it's designed for. It's being used to make critics' posts more difficult to view.
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Where is the line
Aereo isn't just "rebroadcasting". They are providing a legitimate service. A maintained wireless antenna service.
Aereo Haters - Please draw the line - because I'm not seeing it:
Some citizen (Cit) of Manhatten lives in 2nd basement (2 floors under ground) of a popular high-rise. Cit loves to watch Big Bang Theory, but reception does not penetrate to the depth of his apartment.
Case 1.
So an electrical engineer (of which Cit is not) offers to mount an antenna on the roof, runs a long wire down to the basement and into Cit's TV. The improved performance is great and he gladly pays the EE for his time.
Case 2.
EE was happy to help out Cit for a nominal fee, but the long wire gets cut by maintenance crews and other tenants of the building. So he begin charging Cit a yearly fee for maintaining the antenna.
Case 3.
EE likes the arrangement he has with Cit, but realizes that his repair costs would shrink if he made the antenna connection wireless. So he configures several WAPS to send the digital information from the top of the building to Cit's apartment.
Case 4.
EE realizes that the wireless connection could just as easily run from the top of his building as it could from the top of Cit's building. His building has fewer pigeons that break the antenna, so he moves the antenna and is able to provide Cit with better service.
Case 5.
EE realizes that Cit does have an internet connection, so he configures the setup to provide the signal over the internet instead of a dedicated WLAN.
Case 6.
EE realizes that Cit is not the only one in this predicament, so he start Aereo and offers the service to everyone who lives in the city...each getting their own dedicated antenna.
Case 7.
EE realizes that providing everyone with their own antenna is ridiculous and consolidates it down to one antenna which is then shared with all his customers.
Please tell at which case you draw the line - and then why.
-CF
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I swear we've had this conversation already. Not sure why you want to repeat it. If you retransmit it to yourself, then it's a private performance. If you're in the business of renting it out to the public, then it's not. If you just rent it to your roommate, then that's a closer call. I dunno about that one. I think you're trying to find exactly where the line is, but that line is quite fact dependent.
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That statement doesn't even make an ounce of sense. They are transmitting a signal to 1 person, who could otherwise get the same signal and not have to pay anything. How do you define 'public' exactly?
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Re: Most People Just don't understand technology.
But there's another problem here, unrelated to all this Chin music. It would be interesting to know if Aereo is actually doing what is claimed, as the patent people say... if they're really receiving thousands of signals, keeping them separated, and pushing them back out. I've seen that same photo you probably have... their antenna array poking out of a warehouse window in Brooklyn... all the tiny little etched circuits. But there are a couple of technical factoids... rules of physics, actually... which make this really unlikely to work. 1) Antennas need to be resonant for the frequencies they receive, which is why your car's FM antenna is always 31", and why grandma had that giant thing strapped to the chimney for VHF. The Aereo aerials (!) in the picture were way too small for UHF, and out of the question for VHF. And 2) - Small bits of metal (the Aereo copper trace antennas), when placed in close proximity, together form a single, much larger antenna. With a different optimum frequency. Again, from what we've been shown, they're all jammed in together. There are also issues about the lack of "local oscillators" for decoding. Good reads on these issues below. But just really, really curious about what the Great and Powerful Oz has behind the curtain; loving the idea is no reason to drop healthy skepticism.
TV Technology story: http://www.tvtechnology.com/mcadams-on/0117/mcadams-on-aereos-unlikely-proposition/220104
CommLaw story: http://www.commlawcenter.com/2013/07/todays-aereo-decision-technology-takes-a-backseat.html
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The protectionism of this feature is comical.
-CF
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Also, I believe you are confusing the term 'public' with the copyright definition of 'publication'. So let's take a look:
“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
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.
Publication is not happening here - Aereo rents the antennas but not the works themselves, which is what matters.
The definition to 'Publicly perform' seems to be on Aereo's side as well unless you think a single person is a "substantial number of persons outside of a normal circle of a family and its social acquaintances".
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There is no maliciousness in the blocking of your posts.
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But in another sense it is perfectly compatible with another key aspect of the Techdirt groupthink: that there is no such thing as tyranny of the majority. Since it is "the community" doing the censorship, and not any one privileged individual or group, it is inherently good. Censorship is not bad as long as it's done collectively. Same with other kinds of punishment: if the government throws you in jail, that's a travesty. If the entire Internet doxes you and harasses you making your life miserable, that is the superior form of justice known as "social shaming."
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"There really IS Santa Claus! Waaah! There is! There is!"
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Think of it this way: YouTube transmits videos individually to each person who clicks play. Despite each transmission being individualized, YouTube is engaging in public performances since any member of the public can click play and watch the videos.
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Re: Where is the line
Per the statute, the law probably draws the line between cases 5 and 6, because EE has gone from helping a friend to providing a service to the general public.
This isn't unique - I can run a weekly poker night for my buddies, but I can't operate a full blown casino, and the ability to do the former does not imply the ability to do the latter, legally, as much as you may try to make the argument that they are indistinct. The exact line between "weekly poker night" and "full-blown casino" may not be fully clear, because the law is not and never will be a computer program. That does not mean a line does not exist. Gray areas are a feature, not a bug, and courts exist to resolve questions like that. This is the way the system is designed to function.
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He is the minority opinion. The majority opinion, if you'd bothered to look, is a one paragraph declaration that en banc rehearing was denied. No further rationale is given. While it is the court's right to do so, it does not imply that the rulings thus far are legally correct. Just as the Supreme Court denies certiorari to lots of cases for reasons other than merit alone. Maybe they had too little time or interest. That is, it is entirely possible that legally, Judge Chin is correct about Aereo, Cablevision and the whole schmear, while the court as a whole denied rehearing.
There seems to be a strong implication here that rehearing was denied because the other judges came to the conclusion that the existing ruling was correct. There is no evidence for or against this proposition, because the judges provided no rationale.
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This is exactly correct, and it's why Aero won, and Chin is wrong.
The Copyright Act's definition of a "public performance" necessitates that the "end point" of the transmission be to a public location, or that the same transmission be to different members of the public.
Neither situation applies to Aero. Each antenna creates a unique transmission. The "end point" of each transmission is to a single, unique subscriber, and not "a place open to the public."
This is all laid out in the Cablevision case, and repeated in the ruling in Aero's favor. AJ and Chin may not like it, but it is absolutely correct according to the language of the Copyright Act.
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I disagree with Mike blowing off Judge Chin's views because he doesn't like the outcome it leads to. Can he actually address the judge's arguments on the merits? I'm happy to go into great length about what I think the proper view of Cablevision is. I agree with Judge Chin's conclusions because after hours and hours of research, I came to those same conclusions myself. The judge's attempts to distinguish Cablevision from Aereo, I think, are much less persuasive. The nutshell here is that Mike is simply attacking Judge Chin, misrepresenting what the judge actually said, and completely skipping over the actually interesting point which is whether Judge Chin's analysis is correct. That's Techdirt in a nutshell, unfortunately.
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That says a lot about which "scholars" you read, and nothing about the correctness of Chin's arguments.
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Ha ha, most accurate Freudian slip ever.
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Not really. I read all sorts of scholars with all sorts of views. The consensus seems to me to be that Cablevision was wrong. Perhaps you can point me to scholars who say otherwise?
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SUBCRIBER = PUBLIC
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Youtube vids are from a single source, and can be viewed by anyone who wants to view them, so you can argue that they are 'public'.
Aereo however takes a signal from one antenna and transmits it to one person, making it anything but public. Yes multiple people can have access to the same content, but each of them are accessing it from a separate antenna, making them all individual and unique signals.
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Huh, swap in a few words and that M.O. seems rather familiar...
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This isn't hard to understand.
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You must be new here. Perhaps you shouldn't be so snarky about things you have no knowledge of.
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Can I charge my neighbor for the labor?
Can I retain ownership of the antenna and rent it to my neighbor?
Can I write some software that connects the antenna to a wifi router and transmits that to my neighbor's network enabled tv?
Can I do the same thing individually for each person in my community with an antenna on each of their houses? The whole city?
I've just created a service where I supplied the means and charged customers in setting up a service to rebroadcast that content many times to anyone who signed up. If you cannot point specifically to where I broke the law above, then you are arguing that the length of the connection from the antenna to the viewer changes an individual private performance to a public one.
Frankly, it's not the technology that's the most absurd part of this nonsense. It's the entire notion of a public performance that has been twisted far beyond any reasonable definition of public. But you're the one that wants copyright law to be this absurd.
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1 - the home owner is entirely in control of all of the equipment, purchased or install by others, but he alone controls it.
2 - See 1 - the fee is for maintaining the wire, which when fixed is in the possession of the cit.
3 - see 1. As long as the cit is the owner AND IN CONTROL of the equipment, no issue.
4 - Crossing the line here. The equipment would no longer be in the cit's sole control, he would be effectively obtaining services from others. The EE has the receiver and decoding equipment in their possession and control.
5 - See 4. The EE is providing what amounts of a rebroadcasting service.
6 - See 4 & 5. The guy is providing a rebroadcasting service, on par with cable or sat TV. EE is in control and possession of the equipment, not the cit. The cit does not control.
7 - duh... see 4 5 6... obvious!
The line generally is where the cit no longer controls the equipment, then the law says it's no longer a personal private deal and instead is a third party service. There are legal reflections on the length of wire and such, but in reality, it's a question of what the consumer really controls. It is an incredibly fine line, which gets even more complicated when you consider that Aereo has no way to know if the customer is in their home, or has set it up to receive the signal in a business, or (as is common on Techdirt) someone is using a proxy from another location to receive the local service.
For me the transition is as soon as the equipment is not all in the consumers direct control, it starts to get VERY iffy.
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You can't have it both ways, if Aereo is a public performance, then so are a pair of wireless headphones.
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Each individual subscriber owns their antenna, they pay Aereo to mount it for them and maintain the long 'cable' between the antenna and their TV.
If your views of how this should work were accurate, then apartment complexes would count as public performances, because the tenants do not own the wires between their antenna on the roof and their TV (and might not own the individual antenna, as it's associated with the rental unit), but instead pay someone to maintain it for them.
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Of course, if something like that does exist, then I expect the whale oil and silent movie industries are experiencing record profits...just witness how profitable the petroleum industry and Hollywood are, after all!
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No, thanks. We like to keep it rational.
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Actually, that is part of the problem that is not clear. Being "via IP" the user can receive it anywhere, public or private, and could possibly share it with others (say use it as a feed on a screen in a bar) without there any way to assure that it happened that way.
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"It would be interesting to know if Aereo is actually doing what is claimed, as the patent people say... if they're really receiving thousands of signals, keeping them separated, and pushing them back out. I've seen that same photo you probably have... their antenna array poking out of a warehouse window in Brooklyn... all the tiny little etched circuits. But there are a couple of technical factoids... "
I admit I wondered about this also. Are the REALLY making separate recordings, and are these antennas really adequate in dimension to individually receive signals. I know the new digital TV signals require much smaller antennas, but those I have seen in pictures look too small to be believed. I admit, however, I have not studied antenna theory since college, 30 years ago. It is not my branch of electrical engineering design work.
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Ok, someone who knows this sort of thing... is there a remedy?
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Perhaps you can point us to the scholars who you claim hold the view that the Cablevision decision was a bad one?
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Judge Chin cites several in footnote 13:Personally, I think Malkan's explanation is the best one. Judge Chin's arguments track Malkan's. You can read Malkan's paper here: http://law.uoregon.edu/org/olrold/archives/89/Malkan.pdf
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No issue with members of the court disagreeing with one another. But when one is using the argument "the precedent shouldn't be used because the precedent is wrong..." and, worse, that precedent directly contradicted that judge's own ruling... well, I question the impartiality of the judge.
Yes, Chin pointed to other reasons for his dissent, and *that* is fine. But I have a serious issue with "Aereo's reliance on Cablevision is misplaced because, in my view, Cablevision was wrongly decided."
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Yes, Chin pointed to other reasons for his dissent, and *that* is fine. But I have a serious issue with "Aereo's reliance on Cablevision is misplaced because, in my view, Cablevision was wrongly decided."
You simply are misreading that sentence. You have to look at it in context, and then go to the part of the opinion where he explains what he means. You're pulling one sentence out of context and pretending like Judge Chin is saying that Aereo had no right to rely on Cablevision. That's NOT what he said.
Here's the paragraph that sentence is in. It is in the introduction on Page 2:So that sentence appears in the beginning of the opinion where Judge Chin is laying out his road map for the opinion. All he means by that sentence is that Cablevision was wrongly decided. He's saying that the en banc court should take the case so they can fix the faulty parts of the Cablevision opinion. He's not saying that Aereo is wrong to rely on Cablevision. Aereo's reliance on Cablevision is misplaced because Cablevision is wrong. He's not saying that Aereo did anything wrong, he's saying that Aereo's reliance is misplaced because the opinion they are relying on is wrong. But that's not Aereo's fault--that's the problem he wants the en banc court to correct.
Now, I agree that he could have been more clear in how he worded it. But, the way you tell exactly what he meant is to turn to the third section of the opinion. As his road map points out, that's the third part of the opinion. And sure enough, that section is labeled "III. Cablevision Was Wrongly Decided." It begins on Page 12 and goes to Page 26. ALL of it is about how Cablevision was wrongly decided. NONE of it is about how Aereo was wrong to rely on Cablevision.
I'm sorry, Mike, but you're just reading it the wrong way. If Judge Chin's point was that Aereo was wrong to rely on Cablevision, then he would have said that at some point in the 14 pages that his road map points to. But he never says that. I know it's really important for you to attack Judge Chin (and don't pretend for even one second that you would have written this piece about a judge if you liked what the judge had said), but your blows here just aren't landing. It actually says way more about you than Judge Chin. And the fact that you would publish this article just makes you look like a fool. If you want to remain on the fringe, keep publishing hit pieces like this. I know your rabid fans eat it up. But wouldn't you rather cater to people at a higher level of discourse?
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And YouTube streams videos to one person at a time, yet they are publicly performing the videos. You can't just go what you think the law should be. You have to read the text of the actual law.
Copyright is not infringed just because someone is afraid of losing money. Plenty of innovative technologies have made old business models obsolete, and in many cases that has been a good thing. Milkmen and telegraph operators lose their jobs, progress marches on.
And nobody has ever argued that Aereo is infringing because they are losing money. They are arguing that Aereo is infringing because it is publicly performing the works without a license.
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I'm misreading the sentence where he says: "Aereo's reliance on Cablevision is misplaced because, in my view, Cablevision was wrongly decided" to mean that Aereo's reliance on Cablevision was misplaced because Cablevision was wrongly decided...? But that's exactly what he DID say.
Even when you put it back "in context" it shows that he was making some other arguments -- not all of which I disagree with -- but he clearly made that statement, which is what I was questioning.
He's saying that the en banc court should take the case so they can fix the faulty parts of the Cablevision opinion.
I understand that as well, though that's almost as silly, considering he's lost that argument every time he's tried it, and the Supreme Court refused to grant cert, so they didn't seem all that concerned by it either.
As his road map points out, that's the third part of the opinion. And sure enough, that section is labeled "III. Cablevision Was Wrongly Decided." It begins on Page 12 and goes to Page 26. ALL of it is about how Cablevision was wrongly decided. NONE of it is about how Aereo was wrong to rely on Cablevision.
As I said, he's just trying to redo a case where he was found to have judged incorrectly -- something that he's having an awful lot of trouble finding anyone else to support. He couldn't convince his fellow judges (other than one) on the appeals court. The Supreme Court denied cert. The 2nd Circuit (before his arrival) said he was wrong. He may want a do-over, but he's pretty lonely over in that corner.
I'm sorry, Mike, but you're just reading it the wrong way.
I quoted him directly, saying exactly what it says.
I know it's really important for you to attack Judge Chin
Huh? I'm not trying to attack anyone, nor is it "important" for me to attack anyone. I am troubled by what he said in his dissent and said so. Multiple other lawyers have said so as well. It was a copyright lawyer who pointed that line out to me first.
And the fact that you would publish this article just makes you look like a fool.
It is possible to disagree without being disagreeable. You were making a perfectly fine argument without resorting to ad hominems. Why the shift?
If you want to remain on the fringe, keep publishing hit pieces like this. I know your rabid fans eat it up. But wouldn't you rather cater to people at a higher level of discourse?
I love when people make assumptions like this. Considering the direct emailed response I got to this post, it would suggest that you are ignorant of who found this piece interesting and who did not.
Anyway, I would imagine that "catering to people at a higher level of discourse" would necessarily require that I not bother with people who make really bad assumptions, mixed with ad hominems. So, I'll take that advice, focus on named, knowledgeable copyright experts, and leave this discussion, which could have been perfectly reasonable and educational without your decision to resort to silly petty insults.
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I'm misreading the sentence where he says: "Aereo's reliance on Cablevision is misplaced because, in my view, Cablevision was wrongly decided" to mean that Aereo's reliance on Cablevision was misplaced because Cablevision was wrongly decided...? But that's exactly what he DID say.
Even when you put it back "in context" it shows that he was making some other arguments -- not all of which I disagree with -- but he clearly made that statement, which is what I was questioning.
As I said, that statement is located in the road map, and you have to go to Part III of the opinion where he clearly spends 14 pages only talking about how Cablevision was wrongly decided. He thinks Aereo's reliance on Cablevision is misplaced simply because he thinks Cablevision was wrongly decided. If he thought Aereo was wrong to rely on Cablevision, then somewhere in those 14 pages he would have said that. He did not.
I understand that as well, though that's almost as silly, considering he's lost that argument every time he's tried it, and the Supreme Court refused to grant cert, so they didn't seem all that concerned by it either.
The Supreme Court not granting cert can means lots of things. As Judge Chin mentions, the U.S. opposed cert but included some language that the Cablevision opinion shouldn't be read too broadly--as the Second Circuit has done here. If we get a circuit split with the Ninth in the Aereokiller case, or in the First with the other Aereo case, then maybe the Court will take up the issue. I understand that you disagree with Judge Chin's views, but as I posted above, many scholars think it's the correct view, and we've already had the court in California enjoin Aereokiller. This is far from over.
As I said, he's just trying to redo a case where he was found to have judged incorrectly -- something that he's having an awful lot of trouble finding anyone else to support. He couldn't convince his fellow judges (other than one) on the appeals court. The Supreme Court denied cert. The 2nd Circuit (before his arrival) said he was wrong. He may want a do-over, but he's pretty lonely over in that corner.
You aren't addressing my point, which I made very clearly. The introductory sentence that you quoted points to Part III of the opinion, and that part of the opinion is ONLY about how Cablevision is wrong. If Judge Chin was saying that Aereo should not have relied on Cablevision in that introductory sentence, then surely somewhere in those 14 pages he was pointing to he would have said that. He did not. Can you actually address my point here?
I quoted him directly, saying exactly what it says.
Yes, you pulled one sentence out of context and then ignored the 14 pages that sentence points to that says nothing about how Aereo should not have relied on Cablevision.
Huh? I'm not trying to attack anyone, nor is it "important" for me to attack anyone. I am troubled by what he said in his dissent and said so. Multiple other lawyers have said so as well. It was a copyright lawyer who pointed that line out to me first.
And if you agreed with the result of whatever legal argument Judge Chin was advocating, you would not have written an article like this.
It is possible to disagree without being disagreeable. You were making a perfectly fine argument without resorting to ad hominems. Why the shift?
Really? You've been acting like a big censoring douchebag, blocking my MACs, IPs, keywords, and links. You've been going out of your way to keep me from criticizing you, blocking dozens of anonymous avenues of posting on Techdirt. If you want me to be nice to you, you have to stop trying to run me off like I'm trash. You know why I'm here. I want to discuss this stuff on the merits. I want to discuss Judge Chin's actual legal arguments about Cablevision, but all I can get out of you is a lengthy discussion about this one sentence. Why won't you talk about something that actually matters?
I love when people make assumptions like this. Considering the direct emailed response I got to this post, it would suggest that you are ignorant of who found this piece interesting and who did not.
Anyway, I would imagine that "catering to people at a higher level of discourse" would necessarily require that I not bother with people who make really bad assumptions, mixed with ad hominems. So, I'll take that advice, focus on named, knowledgeable copyright experts, and leave this discussion, which could have been perfectly reasonable and educational without your decision to resort to silly petty insults.
Your rabid little fan base here are a bunch of thugs and you know it. Why aren't all your smart friends posting here? You cater to the Reddit/TorrentFreak crowd. I'm sure smart people read your blog. I read your blog. But 99% of the time I'm rolling my eyes at the stuff you come up with. There is value here for smart people, don't get me wrong. But you're shooting for the "OMG copyright! OMG the NSA!" crowd. You don't want to discuss Judge Chin's arguments on the merits. You don't want to discuss the NSA surveillance on the merits. Why not? Let's kick up the level of conversation around here a little bit. You could set a great example. I think you're a really smart guy. I just don't get why you publish most of what you publish. I don't get why you won't discuss any of it on the merits. You and I care about a lot of the same stuff. We could have some meaningful conversations--certainly more meaningful that this particular one.
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Wow. This is 100% false. First of all, I don't even know who you are. You're an anonymous commenter. Second, I have most certainly NOT tried to censor you, nor blocked your MAC, IPs, keywords or links. Considering the level to which we allow open commenting here, that's really an incredible -- and incredibly false -- claim.
If your comments get caught in the spam filter -- which is the only explanation I can think of -- then I'm sorry, but we clear out those comments a few times a day.
But, really, to accuse us of trying to censor you? That's rich. And completely false.
Your rabid little fan base here are a bunch of thugs and you know it.
This from the person who claims above that you want to have a serious discussion? Forgive me for finding that difficult to believe.
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Give me a break, Mike. You know exactly who this is and what you've done to prevent me from criticizing you. And you know that it's all futile.
But let's stick to the merits.
Any chance you could actually address my point about how Judge Chin's sentence that you're picking out was part of an introductory road map, and if you read the 14 pages in Part III of the opinion that it points to, Judge Chin only talks about how Cablevision was wrongly decided and never faults Aereo for relying it? Any chance you could discuss whether Judge Chin's arguments for why he thinks Cablevision was wrongly decided are correct in your view? Any chance you could actually discuss something that matters on the merits?
Instead of talking about talking about it, let's actually just talk about it. Thanks.
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I honestly have no idea who you are. Sorry. I just came back to this post because I was looking something up. I have no clue who you are.
Any chance you could actually discuss something that matters on the merits?
Pretty sure I did already. Not sure what the complaint is here other than that you disagree. That's fine. You don't have to agree with me, but what's with the anger?
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I know you're writing this for the benefit of your readers and not for my benefit, but this is just pathetic. You know damned well who this is. How many other of your number one critics have you gone absolutely apeshit trying to prevent from posting on Techdirt in the last month? None.
And don't pretend for one second that you have no idea how:
(1) both my home and cellphone connections started getting routed to your spam filter within 24 hours of each other despite my having used them here for over three years without issue,
(2) dozens of anonymous TOR exit nodes and other proxies started being routed to your spam filter within minutes of me using them to post messages on Techdirt critical of you,
(3) your spam filters were set to collect the link to the pastebin article I wrote critical of you [ http://pastebin.com/J2njiPPZ ], and then afterwards other shortened links I posted to that article would be routed to the spam filter after I posted them (they are no longer routed to the spam filter since you lifted the restriction),
(4) comments utilizing certain keywords I used to criticize you such as "bawk," "run away," "Mikey's Greatest Hits," and "Mike's Greatest Hits" were routed to your spam filter (they no longer are routed there since you removed the restriction),
(5) the list goes on.
You have gone to GREAT LENGTHS to prevent me from posting on Techdirt, and you know it. You are still routing posts from my home and phone connections to your spam filter, and you know it.
You know exactly who this is. You know exactly what you've done. The fact that you deny it all proves--but not as if the point hasn't been proved definitely hundreds of times already--that you are one of the most dishonest human beings on planet earth.
I mean that, Mike. I think you're a compulsive liar and a sad little angry man who is too chicken shit to have an honest discussion about anything. I think you hate my guts because I keep reminding everyone of that.
Pretty sure I did already. Not sure what the complaint is here other than that you disagree. That's fine. You don't have to agree with me, but what's with the anger?
You did not address the point that I made several times--nor will you--because you are a dishonest coward who can't have an honest discussion about anything. You did not explain why the 14 pages of argument Judge Chin points to in that one introductory sentence says nothing about Aereo being wrong to rely on Cablevision. You know you didn't address my point, and you're just playing the same old pathetic game that you (and your stupid sockpuppets) play where you pretend like you addressed something that you know you haven't.
Be a man and address any of the points above. Try and be honest, and actually address the fact that MACs, IPs, keywords, and links I use to criticize you are (or were) being routed to the spam filter. I know you won't address these points because now you've dug your hole and you're pretending like you have no idea why all of those things happened to me all in the same week. And you'll pretend like you have no idea who this is despite me talking about these things in the comments for the past month and despite pretty much every other reader on Techdirt knowing who this is.
How fucking pathetic can one man be? Seriously, dude, how do you walk around like that?
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thus its not a public site but private.
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