US Solicitor General's Office, Run By Former Top MPAA Lawyer, Shockingly Sides With Broadcasters Over Aereo
from the it's-the-little-things dept
As the Aereo case is set to be heard by the Supreme Court in April, there have been a flurry of amicus briefs filed on both sides. It's disappointing, but not too surprising, to see that the official position of the administration is to side with the broadcasters over Aereo, arguing effectively that the length of a cord changes the copyright calculation. This position goes against every Aereo court ruling to date, except for one odd ruling in Utah. That the US government would take this position isn't too surprising. After all, the Solicitor General of the US (whose office prepared this brief) is Donald Verrilli -- who probably would have been representing the broadcasters in this case if it had happened a few years ago. For years, he was Hollywood's go to litigator for their big copyright cases, including the infamous Grokster case, in which he convinced the Supreme Court to create a new "inducement" standard for infringement. Technically, Verrilli "recused" himself from this filing, but what were the chances that the folks who report to him were going to file a brief that sided against the organization most likely to employ Verrilli once he leaves government service?The key issue in the case is whether or not Aereo is retransmitting to the public. As we've explained multiple times, Aereo's setup is technologically insane, but legally sensible, given just how stupid copyright law is today. Because it's recognized as legal that you can place shift legally accessible TV (a la a Slingbox) and that you can watch over-the-air TV via a personal antenna (duh), Aereo has set up "individual antennas" for each customer, connected to the equivalent of a Slingbox, such that you can "subscribe" and get access to over-the-air channels. It's technically no different than you setting up an antenna and Slingbox in your home, except that the distance of the cable between the antenna/Slingbox combo and your TV is much longer with Aereo (across the internet) than in your home. However, broadcasters and other supporters of them (now including the US government) argue that this longer cable somehow, magically, turns this individual antenna into a public broadcast for which Aereo should be expected to pay ridiculously steep retransmission fees.
The arguments put forth by the US government are basically a carbon copy of what the broadcasters are saying. They completely reject the length of the cable argument by basically saying that, what really matters, is how this might undermine the retransmission fees broadcasters get. Specifically, they say that it doesn't matter that people at home can create their own Aereo legally, what matters more is that Aereo looks too much like cable retransmission:
Respondent observes that, from the subscriber's perspective, respondent's service provides substantially the same functionality that consumers could obtain by purchasing equipment for their homes. In enacting the 1976 Copyright Act amendments, however, Congress overrode decisions of this Court that drew on the same analogy. In applying the Copyright Act in its current form, the more important functional equivalence is between respondent and the cable systems that the 1976 Congress brought within the Copyright Act's purview.But that totally and completely ignores some pretty significant differences, especially around how Aereo has an individual antenna for each user, as well as making sure that there's an individual copy made. That was not the case at all with cable systems.
While this filing is careful to state that it is not trying to undermine the important precedent set in the Cablevision case (which said a remote DVR controlled by a cable company is legal), which was a key reason why the lower courts sided with Aereo, it's important to note that back when the Cablevision case was up for appeal to the Supreme Court, Verrilli's predecessor sided with innovation over claiming infringement. It's just now that the Solicitor General who has a long history of representing Hollywood is in control, that the administration seems to be happy to side with copyright maximalism, over innovation. The one potential saving grace: the prior solicitor general who sided with Cablevision and against the broadcasters? Elena Kagan... is now a Justice on the Supreme Court.
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Filed Under: broadcast, solicitor general, streaming, television
Companies: aereo, mpaa
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if thats all that matters, let me answer it for them,
None, no effect at all.
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The settop boxes without local storage will almost certainly be upgraded to ones that do so that the one time disk price ($35.00 ?) would make them exempt in the future.
What the SG is saying, in effect, is that a legal loophole circumvents the "intent" of Congress and therefore is not legal. Meaning that the SG, not Congress, gets to say what is and is not illegal.
Since when does the Executive branch get to "fix" the "mistakes" made by Congress ?
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No, it is simply a matter of the SG wanting his friends to have government backing for continuing the shakedown and is willing to ignore that AT&T sends multiple phone conversations over the same set of wires (50 conversations over four wires was what I heard, thousands per fiber, I think) and those are "individual" but because a network card can be "promicuous" that makes them "broadcasts", or at least "public" (in spite of phone equipment being as able to be "promiscuous").
In spite of his pretending that the "length of the cable" makes no difference that is the result he wants, just so nobody points out the reality of that stupidity by using those words.
Goes hand in hand with calling a monopoly "property" so people don't think about what is really going on.
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Aereo doesn't rely on individual encryption keys to make it legal, they rely on individual hardware.
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No, they can't.
A very key piece of Aero's method is that each subscriber has their own dedicated TV antenna. The cable companies have never had any such thing.
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Damn pirates
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Re: Damn pirates
So you better be buying 15 new cars a week (real cars, not toy cars!), and shopping at grocery and retail stores 5+ times a day, and taking trips to tourist resorts at least once a day!
By my estimation, everyone but Bill Gates, Warren Buffet, and the cord cutters who never watch TV even on a tablet or computer must be a Pirate.
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Re: Damn pirates
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Re: Re: Damn pirates
Your take is entirely incorrect. Broadcasting does not remove copyright protection.
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Every customer would "see" only what streams from "their" antenna via an encrypted stream.
You cannot view my stream even if both streams come through common access points.
Unles you are saying that encrypted streams are "public" ? I am sure that the NFL will resist having their streams decrypted without any penalty.
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As such, if the larger companies/broadcasters wanted to do something similar, they would also have to set up an antennae for each customer, they couldn't do what they do now and just broadcast the same signal to multiple customers.
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I don't think cable companies could do it over their own network any more than satellite companies could. That's a broadcast system; they can't send something to just one subscriber, which is what the Aereo system requires.
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Conflicts and Scumbags
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Re: Conflicts and Scumbags
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Re: Conflicts and Scumbags
This is neither true nor particularly accurate. The lies in particular were to the Supreme Court, not Congress, and Verrilli was repeating a lie he was told by national security lawyers, under the belief that the claim was true. And, to his credit, once it was shown to be a lie, it appears that he was furious and forced changes to policy.
I have my issues with Verrilli, but the NSA stuff is not one of them.
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This isn't to his credit. The mea culpa should have to the Court itself. Failure to do that was a breach of professional ethics.
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They could be smart and start up their own net delivered streams so when that happens they continue to exist as a company.
Or they could puts all their eggs in a the legislative basket and hope for the best.
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Have fun when no one gets to watch the Super Bowl or even the Oscars because tens of millions of people want to watch the same thing from the same source at the same time! The Internet is great at delivering lots of things to a few people, broadcasting is great at delivering a few things to lots of people. To dismiss it as "less important tech" would be to make a grave mistake.
What's needed is to protect it from its own alleged gatekeepers who would rather keep collecting fees from cable companies than actually support the technology of broadcasting, and to build the infrastructure to allow any device to pick up a broadcast signal directly, without needing to go through the Internet (or cable provider) as an intermediary. On this, some broadcasters who actually care about broadcasting have made at least halting advances.
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This makes no technical sense. Replace all the cable broadcasts with internet servers and you have pretty much the same thing, just more versatile.
Heck, since it's all "on demand" it's technically better than traditional distribution systems. In other words, the server is only transmitting data when another system queries it, rather than constant transmission to all possible reception points for all possible streams (aka cable television). Think about it, what uses less bandwith...a radio station (constant transmission) or a push-to-talk radio (burst transmission). And this is ignoring potential that is impossible for traditional broadcasting, such as cascading bandwith (i.e. Bittorrent-style protocols).
It's not only "less important tech", it's useless tech. It's the horse and buggy to the Model T, and you're still arguing that horses are better since there aren't many paved roads or gas stations and all the laws are based around horses.
Horse and buggies are still around, but few would argue we should have cracked down on these newfangled "car" things before they destroyed an industry. Guess what? The buggy manufacturers went out of business, started making cars or otherwise moved on with their lives, and the world kept spinning.
Mass broadcasting is the same thing. It's legacy tech, from an industry that still thinks in terms of silly devices like CDs and movie theaters, obsolete in an age of flash drives and home theaters. The only reason these things still exist is due to laws, contracts, and those who use them for the social aspects. Which is fine...I still enjoy a good campfire or hike, but to imply that either is "modern technology" is insane.
Broadcasting technology has been obsolete for years, kept alive by a Frankenstein of lawyers and paper that has nothing to do with technology. If you want to make the arguement that it's good for the industry, that's fine, but please don't pretend there's any technological benefit to be found there.
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Fuck the US Solicitor General and His Office
Studios and government.. almost every single swinging dick in either organization is involved in a full blown assault on the rights of the public. What the hell?
With all of these archaic assholes in charge is it any wonder why the perception of piracy is such a problem? They're holding the keys to the fucking pirate factory in their cold, clammy mitts and run that shit like clockwork.
They're creating piracy for the sole purpose of fighting piracy. It's beyond surreal.
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Re: Fuck the US Solicitor General and His Office
Of course, without something dramatic, this will never happen.
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Really?
You get so little right, it is dwarfed by that which you get wrong.
For starters, plenty of people (including more courts than you suggest) have reached the conclusion that Aereo-style systems infringe. Personally, I believe pretty strongly that they are wrong -- but isn't it sufficient just to argue that they are wrong? Must you also start spinning conspiracy theories about how anybody who disagrees with your (completely uninformed) view are obviously corrupt?
I mean, I know not everybody can be the upstanding and incorruptible people that commentators at Techdirt are. (You guys don't benefit in any way by hyping controversy, right?)
Then there's the fact that the SG's argument is not a carbon copy of the broadcasters' position. If it's a carbon copy of anything, it's a carbon copy of Cablevision's position -- arguing that Aereo infringes, while Cablevision and other cloud storage systems do not. (This is certainly not the broadcasters' view.)
It's apparent that you haven't read the SG's brief -- or if you did, you certainly didn't understand it -- because your summary of what it does and doesn't say, what it does or doesn't ignore almost couldn't be less informed.
And apparently you never read Kagan's SG brief in the Cablevision case, either, because you mischaracterize that, also. That brief didn't take any firm position on the issues, and certainly didn't take a position that would clearly support Aereo. In fact, that brief expressed concern that the Cablevision precedent could be misinterpreted too broadly. If one were trying to read the tea leaves (after all, that brief was just about the question of whether the court should hear the case), one might conclude that their view was similar to the one released yesterday: that they thought Cablevision was probably ok, but feared it could be taken too far.
So perhaps it shouldn't come as a surprise that the two briefs had at least one author in common.
That said, the SG's office very clearly got this one wrong. Not because I disagree with their basic arguments (which for the most part I do), but because they contradict their own argument in the process.
And I think that is properly attributed to simple incompetence, rather than malice.
Anybody who would like to actually understand the SG argument, and how it contradicts itself, can find more here:
http://cimc-greenfield.com/2014/03/03/us-government-sides-with-broadcasters-on-aereo-contradict ing-itself-in-the-process/
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RE: Aereo Copyright Case My Comments
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