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

Tue, Mar 4th 2014 12:55pm — Mike Masnick

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.

210378634 13 461tsacUnitedStates (PDF)210378634 13 461tsacUnitedStates (Text)

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Filed Under: broadcast, solicitor general, streaming, television
Companies: aereo, mpaa

33 Comments

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jackn, 4 Mar 2014 @ 1:11pm

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

if thats all that matters, let me answer it for them,

None, no effect at all.
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TheResidentSkeptic (profile), 4 Mar 2014 @ 1:29pm

Damn pirates
Isn't it obvious by now that every viewing of a free over-the-air broadcast is theft?
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Ima Fish (profile), 4 Mar 2014 @ 1:30pm

I'm shocked the cable and satellite companies haven't come to their senses and started supporting Aereo's legal argument. If Aereo wins, the cable and satellite companies would have a huge bargaining chip in their negotiations with the broadcasters. Basically, they could threaten to do the exact same thing.
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Anonymous Coward, 4 Mar 2014 @ 1:40pm

Re: Damn pirates
Almost, you're NOT a pirate if you buy all the products advertised on commercials, once for each time you see the ad.

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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edpo, 4 Mar 2014 @ 1:44pm

Conflicts and Scumbags
Verrilli should have been fired and disbarred anyway for facilitating the NSA lies to Congress. The entire executive branch is infested with dishonest and unethical attorneys.
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Ed Allen, 4 Mar 2014 @ 1:48pm

Re:
Not true. Because the cable companies who have settop boxes with storage in homes instead of the main office can argue that they are exempt from the "public broadcast" the same as Aero so they are owed refunds from the Broadcasters.

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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Anonymous Coward, 4 Mar 2014 @ 1:48pm

Re: Conflicts and Scumbags
The correct word is people. The fact that they are attorneys is secondary to the fact that they are breinging their profession into disrepute.
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That One Guy (profile), 4 Mar 2014 @ 1:50pm

Re:
Not so much really, Aereo's system is legal because of the 1-1 system, where each customer has their own 'antenna', which is fine and viable(if technologically incredibly stupid) for a service with a fairly small number of customers, but for the bigger companies, who serve tens of thousands, if not millions of customers, it wouldn't work out nearly so well.
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Mike Masnick (profile), 4 Mar 2014 @ 1:51pm

Re: Conflicts and Scumbags
Verrilli should have been fired and disbarred anyway for facilitating the NSA lies to Congress.

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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Zem, 4 Mar 2014 @ 2:01pm

Broadcasters have a limited life span now anyway. The spectrum they c urrently occupy, and seam to take for granted, will be taken from them as more important tech pushes them out.

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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SlinkySlim, 4 Mar 2014 @ 2:02pm

Fuck the US Solicitor General and His Office
Is it just me or is there some grand scheme of collusion over the ownership and flow of information?

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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Anonymous Coward, 4 Mar 2014 @ 2:20pm

Re: Re:
The cable companies cant make that argument where the set-top boxes have storage and attempt to be exempt from public broadcast because the signal that reaches the set-top box is not a private stream. That signal originates from a single source at the cable company and it is broadcasted through their network of coax cables. The cable card in your set-top box determines whether or not you have permission to decode the signal.
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Anonymous Anonymous Coward, 4 Mar 2014 @ 2:28pm

Re: Fuck the US Solicitor General and His Office
None of us will see satisfaction so long as there is money involved in elections, creating the need to campaign instead of work, deal with lobbyists instead of work, and create the market for deep pocket contributors. If the government would set up a program to to fund all elections, and control outside advertising, we could correct a lot of evil (and probably save a lot of money).

Of course, without something dramatic, this will never happen.
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Ed Allen, 4 Mar 2014 @ 3:02pm

Re: Re: Re:
So individual encryption keys, same as Aero uses to hide its service from non customers, would surely qualify as a private connection since it could be easily shown to be decryptable only by one box no matter how many hommes it "went by".

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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Ed Allen, 4 Mar 2014 @ 3:08pm

Re: Re:
Why not ?

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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Anonymous Coward, 4 Mar 2014 @ 3:19pm

and are the same people involved in this case as are involved in the Dotcom case? if so, you can bet what they are up to and why. it's another case of a former congress critter scratching the backs of old comrades in arms and offering a bit of succor in return!
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Togashi (profile), 4 Mar 2014 @ 5:09pm

Re: Re: Damn pirates
Awesome, I'm in the clear! My TV gets one channel very spottily. I only know this because it insisted on searching for channels when I first turned it on. And I can honestly tell you that I've bought every product that I've seen in a commercial on Netflix.
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J. S. Greenfield, 4 Mar 2014 @ 6:05pm

Really?
Good lord. I'm glad that this is categorized under "Politics" rather "Law," though better still if it were categorized as "Demagoguery" or even just "Fantasy."

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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Josh (profile), 4 Mar 2014 @ 6:55pm

Re: Re: Re: Damn pirates
Every time you see the commercial?
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John Fenderson (profile), 4 Mar 2014 @ 8:01pm

Re: Re:
"Not true. Because the cable companies who have settop boxes with storage in homes instead of the main office can argue that they are exempt from the "public broadcast" the same as Aero so they are owed refunds from the Broadcasters."

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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That One Guy (profile), 4 Mar 2014 @ 8:20pm

Re: Re: Re:
It has to do with how they set things up to be legal. Aereo has one antennae for each customer, and that antennae can only be used for that one customer, it cannot be shared with any other accounts, otherwise it goes from private performance(legal), to public performance(illegal).

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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Morgan Wick, 4 Mar 2014 @ 10:52pm

Re:
Broadcasters have a limited life span now anyway. The spectrum they c urrently occupy, and seam to take for granted, will be taken from them as more important tech pushes them out.

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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Anonymous Coward, 4 Mar 2014 @ 11:46pm

Re: Really?
On the plus side, at least there's a reasoning for your criticism. And thank you for the link, that made for some fun reading.
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Mike Masnick (profile), 4 Mar 2014 @ 11:50pm

Re: Really?
Your post is very interesting and certainly provides some valuable points. You could have made your point without insulting me and it would have come off as a lot more valuable, and you wouldn't seem like a world class asshole. But, to each his own.
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Anonymous Coward, 5 Mar 2014 @ 7:44am

Re:
The cable companies could do this, but satellite companies don't have the bandwidth. Cablevision's (and Aereo's) cases rely on users having individual copies and streams.
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edp, 5 Mar 2014 @ 8:15am

Re: Re: Conflicts and Scumbags
" And, to his credit, once it was shown to be a lie, it appears that he was furious and forced changes to policy...."
___________________________

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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edpo, 5 Mar 2014 @ 8:22am

Re: Re: Re: Conflicts and Scumbags
And one more thing, 18 U.S. Code � 1621 applies to testimonial oaths before Congress just as much as before the Court.
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JP Jones (profile), 5 Mar 2014 @ 11:23am

Re: Re:
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.

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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nasch (profile), 6 Mar 2014 @ 6:26am

Re: Re: Re: Re:
So individual encryption keys, same as Aero uses to hide its service from non customers, would surely qualify as a private connection since it could be easily shown to be decryptable only by one box no matter how many hommes it "went by".

Aereo doesn't rely on individual encryption keys to make it legal, they rely on individual hardware.
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nasch (profile), 6 Mar 2014 @ 6:30am

Re: Re:
The cable companies could do this, but satellite companies don't have the bandwidth.

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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Bob Shapiro, 21 Mar 2014 @ 10:37am

Re: Damn pirates
My personal take is that free to air means that you are now in the public domain, once you decide to send TV copyrighted program you are now in public domain and the material can be used and redistributed without copyright infringement. Besides TV companies sure make enough money from advertising dollars.
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BobTech, 21 Mar 2014 @ 10:57am

RE: Aereo Copyright Case My Comments
I believe when a TV Station sends their so to speak copyright material over the public airwaves which is FREE, they lose their copyright controls since it is now in the PUBLIC DOMAIN and individuals should be able to redistribute this material in anyway they want example of course is via using cloud technology. By BIG MEDIA also crying copyright infringement they are also going against first amendment of freedom of speech, by inhibiting the free flow of information. Freedom of speech is vitally important in a free society.
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nasch (profile), 21 Mar 2014 @ 12:44pm

Re: Re: Damn pirates
My personal take is that free to air means that you are now in the public domain, once you decide to send TV copyrighted program you are now in public domain and the material can be used and redistributed without copyright infringement.

Your take is entirely incorrect. Broadcasting does not remove copyright protection.
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