Why Is The US Gov't Arguing In The Supreme Court To Reshape The Internet The Way Broadcasters Want It?

from the smacks-of-soft-corruption dept

Mon, Apr 21st 2014 11:06am — Mike Masnick

This is hardly a surprise, given that we'd already covered the brief submitted by the US Solicitor General's office in support of the broadcasters and against Aereo, but the Supreme Court has agreed to allow the office to argue in court tomorrow in the Aereo case. Again, not surprisingly, the Solicitor General's office tends to have a lot of sway with the Supreme Court, so this is effectively the US government tipping the scales of justice in favor of Hollywood and against the internet, where the impact of a ruling against Aereo may be quite severe.

The Solicitor General's office has argued that a ruling for Hollywood won't impact the cloud, basically because they say so. But, as we've discussed, its argument there is truly bizarre, in that it just asserts that such a ruling "need not" impact the cloud, and never bothers to address the many reasons it will absolutely impact the cloud. In fact, many of the other briefs in support of the broadcasters' position insist that the broadcasters should win because all those other companies can "just get a license." Now think about that for a second. Imagine using your Dropbox if nothing can be uploaded until Dropbox confirms it has a license for the work. Right. That's not going to work.

And, of course, this is what this case is all about. Broadcasters have always hated the internet, because they can't control it. Broadcasters have spent decades honing a business model that is based around a "broadcast" model. That is, they send out a signal, and the masses "consume" it. The internet has shaken that up in so many ways, because the internet is not a broadcast system. It's a communications system that allows anyone to communicate with anyone. For decades now, broadcasters have worked hard to reshape the internet into a better "broadcast" medium. That's what nearly every copyright challenge is about. Giving more control to the big broadcasters, while making it harder for the everyday internet user to do anything online without getting it shut down.

Stifling cloud computing by pushing for every bit of content -- even those totally in control of an individual user -- to be "licensed" is just the latest such attempt to stifle the internet as a communications medium of the people, and to push it to be a broadcast medium for a few giant entertainment companies.

So, really, the big question is why anyone thinks it's appropriate at all for the US government to weigh in here. We've already noted the significant conflict of interest in that the Solicitor General himself, Donald Verrilli, spent many years as Hollywood's top lawyer, even arguing in the Supreme Court on some key copyright cases. And while he recused himself from all of this, it at least smacks of the "too cozy" relationship between Hollywood and the US government. Also recused is Verrilli's top deputy who, prior to rejoining the government a few years ago, was a top lawyer at Jenner & Block, the very same law firm representing the broadcasters in this case. Yes, they've recused themselves, but given that it's rather bizarre that the Solicitor General's office decided to get involved in this case in the first place, it certainly raises eyebrows about the reasons.

This is a dispute where the US government really has no role joining in the proceedings, but it has decided to assert itself, solely on the side of broadcasters and against the internet. Seems like an odd choice for an administration that has claimed to be so internet savvy.

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Filed Under: broadcasters, cloud computing, copyright, donald verrilli, public performance, solicitor general
Companies: aereo, jenner and block

60 Comments

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Susheel (profile), 21 Apr 2014 @ 11:15am

Clarification
Mike, where in the US Government's argument did they imply that a cloud service would have to confirm the user has a license before allowing an upload?

"Imagine using your Dropbox if nothing can be uploaded until Dropbox confirms it has a license for the work. Right. That's not going to work. "
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Mr. Oizo, 21 Apr 2014 @ 11:17am

There is no reason to take it up for cloud computing
certainly not because the idea of true cloud computing was hijacked by organisations like google and amazon. _true_ cloud computing would very likely not be affected by such ruling so I would say: Let google and all forms of aggregators and middle management suffer, there is no reason to support them if they keep up making a commodity of the net.
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That Anonymous Coward (profile), 21 Apr 2014 @ 11:18am

Because they were paid to.
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Anonymous Coward, 21 Apr 2014 @ 11:19am

"Seems like an odd choice for an administration that has claimed to be so internet savvy."

They're savvy enough to suck up all the data they can, in case you might be Up To Something.
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Anonymous Coward, 21 Apr 2014 @ 11:20am

"So, really, the big question is why anyone thinks it's appropriate at all for the US government to weigh in here."

Because the copyright butchers (MPAA/RIAA/broadcasters) have paid outrages amounts of money to buy the government and now they expect a return on that money.

Nobody else thinks it is appropriate. This is corruption, plain and simple. The mere fact that the solicitor general used to be on a payroll of the very industries this brief will benefit in the end is the prime example of this.
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That One Guy (profile), 21 Apr 2014 @ 11:21am

Question:
Did they 'recuse' themselves before, or after writing up the talking points the department they run will be using?
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BentFranklin (profile), 21 Apr 2014 @ 11:23am

This is what they had to give Chris Dodd after failing on SOPA.
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Anonymous Coward, 21 Apr 2014 @ 11:24am

Re: There is no reason to take it up for cloud computing
Then O wise and all knowing MR. Bozo (I took the liberty to correct your misspelling of your name) Please enlighten us what a true scotsman, oh sorry, what true cloudcomputing is supposed to be?

I mean outside of a meaningless marketing buzzword for distributed online services...
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Anonymous Anonymous Coward, 21 Apr 2014 @ 11:26am

Re:
I think you forgot:

The Health care website roll-out.
NSA's efforts to buy and distribute malware.
NSA's efforts to break basic encryption.
The White House's refusal to answer eligible (according to them) petitions.

and probably many I am forgetting.
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That One Guy (profile), 21 Apr 2014 @ 11:26am

Re: Clarification
Confirm, no, heavily imply, yes.

They're arguing on the same side as the ones saying that Dropbox and similar services won't be negatively effected, since 'all' they'd have to do would be get a license for all the content stored on their servers, which would be all but impossible, either logistically, or financially, for any service but the giants to manage.
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That One Guy (profile), 21 Apr 2014 @ 11:27am

Re:
I thought that was what the Dotcom raid was for, the good little serfs showing that they were still loyal to their masters by going after someone who presented a threat to them.
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Violynne (profile), 21 Apr 2014 @ 11:30am

Does anyone here truly believe there's a winner in this case? Regardless how SCOTUS rules, customers lose. It's just that simple.

Costs now will explode if Aereo wins. Analysts believe cable companies will stop paying the broadcast fee because they are no different than Aereo, and they'd be right. Once these fees are taken to court to nullify contracts, who's left paying the bills? We are. The customers.

And we're already paying the bills if Aereo doesn't win, meaning monopoly prices continue to soar with absolutely no way for customers to choose.

Hope people enjoy Game of Thrones. They helped pay for this lawsuit.
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Anonymous Coward, 21 Apr 2014 @ 11:37am

The RIAA promised when it was trying to get the DMCA passed it would never abuse the law were it given it. There are now plenty of examples of both them and lots of others doing exactly that.

Our government isn't listening to the public. It's no longer a democracy, it's an oligarchy. Those with the money are who are being heard and listened to.

In that is why you have the US government playing in court not for the betterment of its citizens but for aid to those with the money.
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Charles (profile), 21 Apr 2014 @ 11:40am

Nine Robes
Nine robes were gifted to men, who, above all else, desire power.

I have no confidence the SCOTUS will rule correctly, IMHO, for Aereo in this case.
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That One Guy (profile), 21 Apr 2014 @ 11:40am

Re:
Analysts believe cable companies will stop paying the broadcast fee because they are no different than Aereo, and they'd be right.

Except for one tiny little facet: Aereo's service is on a one-to-one setup, one broadcast, to one customer, which they argue(and I agree) doesn't count as a 'public broadcast', and so therefor they don't need to pay the fees they otherwise would have to.

Cable companies however send out the same feed to multiple people, so they wouldn't be able to piggyback on the ruling without a major, and majorly expensive, refit of their current setups.
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Anonymous Coward, 21 Apr 2014 @ 11:41am

Re:
And people wonder why I consider the US a pre-fascist oligopoly.
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Susheel (profile), 21 Apr 2014 @ 11:53am

Re: Re: Clarification
I don't think that is an accurate reading of the USG's argument. The USG says that users can upload what they want since they've lawfully obtained a license on their own, so cloud services would not have to. The USG is silent on what to do in the case where the user has not 'lawfully obtained' a license, but no where does the USG imply that the cloud service would have to confirm the user has a license. They probably use the term 'lawfully obtain' because as a matter of policy they don't want to imply that consumers don't have to lawfully obtain content.
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Peter (profile), 21 Apr 2014 @ 11:55am

Little payback ...
... for all the support Obama got from Fox.

Oh wait ...
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Shadow Dragon (profile), 21 Apr 2014 @ 11:59am

Re: Re:
Look what happened to Mussolini when he tried that.
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Anonymous Coward, 21 Apr 2014 @ 12:08pm

Which side the the US government take in the VCR case?
I'm too lazy to look it up, what side did the US government in the 5-4 Supreme Court ruling that the VCR wasn't infringing and had plenty of legitimate uses? Or did they not weigh in on the case.
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PRMan, 21 Apr 2014 @ 12:13pm

Re:
Cable companies SHOULDN'T be paying for OTA, since the law Aereo is relying on is the one that was originally FOR CABLE COMPANIES.

It's because the government started allowing the same companies to control content and distribution that we have ended up in this mess.
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Anonymous Coward, 21 Apr 2014 @ 12:28pm

"Seems like an odd choice for an administration that has claimed to be so internet savvy."

But they are Internet savvy. They know that the Internet as we know it would undermine them and plan on doing something about it.
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Anonymous Coward, 21 Apr 2014 @ 12:30pm

Because they don't, and shouldn't, support piracy which is essentially what Aereo is?

If Aereo wants to rebroadcast television, then they should pay the fee and stop whining. The only people I see bothered by this are the small minority of annoying hipster "cord cutters" who want the benefits of cable but don't want to pay.
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Anonymous Coward, 21 Apr 2014 @ 12:30pm

Re: Re:
technically it would be one unicast, not a broadcast, hence the fight.
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Anonymous Coward, 21 Apr 2014 @ 12:32pm

Re: Which side the the US government take in the VCR case?
you know the answer, what you've messed up is the question. "was it the pre- or post- Bush SCOTUS that ruled in the.."
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Joseph Ratliff (profile), 21 Apr 2014 @ 12:36pm

Ahem...
The SCOTUS needs to look up "checks and balances" again.

They aren't "checking" and they're really screwing up the "balance."

More like: "screw up and backfire."
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Ed Allen, 21 Apr 2014 @ 12:42pm

Re: Re: Re: Clarification
But the next step, the one being glossed over here, is that the next action of the MPAA
is to again make services allowing uploads by non-media employees is to make them
subject to CRIMINAL penalties if a file any of the official good guys" does not
pre-approve slips through.

That will offload the costs of policing onto others like the media folks have wanted
for years and turn the Internet into Broadcast Tool 2.0 including economic death
for any daring enough to allow users to communicate outside the media cenorship apparatus.

The reason the US government is in favor of this is because the "Arab Spring" showed
them what happens to goverment control when people can talk to each other without
goverment "filters".

Politicians know you cannot be re-elected if people are
allowed to expose the lies in real time.
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That One Guy (profile), 21 Apr 2014 @ 12:43pm

Re:
small minority of annoying hipster "cord cutters"

Yup, you keep repeating that to yourself, and maybe one day it'll be true(hint: it won't).

Increasing numbers are 'cord cutting' not because they want cable but don't want to pay for it, but because they're seeing that what they get isn't worth the money they pay, so they no longer care enough about it to do so.

Piracy would be the better possibility in that case for the broadcasters(if people are pirating, that implies that they still care about the shows), as the real reason is that ex-customers just don't think the content is worth their time and money anymore, and are acting accordingly.
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jupiterkansas (profile), 21 Apr 2014 @ 12:46pm

Re:
Those with the money are who are being heard and listened to.

This is how it's been since the beginning.
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That One Guy (profile), 21 Apr 2014 @ 12:48pm

Re: Re: Re: Clarification
Ah, but how do you prove that what you've uploaded is 'lawfully licensed'?

Should the studios/broadcasters win here, then you can bet they'll push the filelockers to police what gets posted, to either make sure that everything uploaded does have that 'lawfully obtained license'(which would be impossible), or push the idea of forcing the filelockers to purchase 'licenses' of their own, 'just in case' something gets uploaded that might be infringing. Another 'you must be a pirate' tax basically.
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Anonymous Coward, 21 Apr 2014 @ 12:52pm

We have 80 channels of cable television, we watch maybe 10-12 of them at best. A brother uses an antenna and gets about 40 channels non gratis, digital channels at that. We don't get a digital signal with our 80. We now have to pay for a box for every television, the one we received went in the bedroom.

It seems to be the American way. My employer pulls the same stunts with supplies, equipment, and staffing. Sooner or later the last straw will break, and that ought to make the great depression look like preschool at nap time. The future will be left to those of us willing to get our hands dirty, the rest will be jumping out windows, 6 stories up and above I hope.

Oh well, if the high court goes against the lower courts ruling for Aereo, the proverbial crap will fly, or hit the fan so to speak.

We also have a home DVD player/recorder, haven't seen a bluray model for a direct connection to the television that plays and records yet. Ethics and civility, I do not believe so. Avarice and greed, plain and simple.
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jupiterkansas (profile), 21 Apr 2014 @ 12:52pm

Re:
What does this have to do with cable and cord cutters? This is about broadcast television, which is the only thing cord cutters can still watch.

This is about being able to watch broadcast content on a device that can't receive a broadcast signal - something the broadcasters could provide but don't.

And it's not piracy until the supreme court says it is, no matter what you think it is.
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Anonymous Coward, 21 Apr 2014 @ 12:57pm

fairly obvious really. if the Hollywood wins, it will have a carte blanche to spy on the people. that means that the government and law enforcement will be able to spy too as a returned favour for giving permission and changing laws already into Hollywood's favor. the absolutely ridiculous thing to think about is why the fuck should a whole planet be ruled by an industry that uses nothing but make believe and camera trickery? why should they have untethered and unlimited access to the best distribution method this planet has ever seen? why should they be able to force everyone everywhere to pay the penalty for their own failure and pathetic attitudes that have hindered the rest of the world over so much and so many things that could have been of benefit to so many? they deserve to fail on a massive scale at the first opportunity!!
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Ed Allen, 21 Apr 2014 @ 1:06pm

Re:
Except that the Courts held, multiple times, that the "rebroadcast fee"
was a figment of media greed with no basis in law.

So the media whipped their paid for shills into a legislating
frenzy and got "rebroadcast fees" brought into existence.

The fees tranfer money to a few big companies and cost
everybody else more, just like all other monopolies do.

That the sum of all the micro-transactions outlawed by
their scheme would actually GROW the economy for everbody,
including them, seems to be ingnored in their effort to
assure "nobody gets to make money but us!"

Such is the delerium of greed.
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Rex, 21 Apr 2014 @ 1:09pm

re: Why ... ?
Because Obama, congress et al have been bought and paid for by the entertainment industry.

That's why.
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John Fenderson (profile), 21 Apr 2014 @ 1:10pm

Re: Re: Re: Clarification
"The USG says that users can upload what they want since they've lawfully obtained a license on their own"

I find it odd that they use the term "license" in this way, though. There's an awful lot of legal content that has no, and requires no, license.

It's a very specific term, and so it implies very specific things.
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Anonymous Coward, 21 Apr 2014 @ 1:11pm

Re: Re: Re: Re: Clarification
Ask Pandora about licensing when the industry decides to try and destroy your business.
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Anonymous Coward, 21 Apr 2014 @ 1:14pm

Re: Re: Re: Re: Clarification
But can they download it again afterwards, or will it just be a feed straight to NSA?
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John Fenderson (profile), 21 Apr 2014 @ 1:18pm

Re:
I'm not entirely sure I'm following you here.

"Once these fees are taken to court to nullify contracts, who's left paying the bills? We are. The customers."

Who's "we"? If the cable companies aren't paying retransmission fees, then there's no increase on your cable bill. If you're getting these stations OTA, there's no way for them to even begin to bill you, let alone increase rates.

"And we're already paying the bills if Aereo doesn't win, meaning monopoly prices continue to soar with absolutely no way for customers to choose."

Again, who's "we"? Do you mean cable customers? I think you must be, since I can't think of another group that would apply.

In terms of cost to consumers, it seems to me that everyone wins if Aereo wins (except for the broadcasters, who lived just fine before they got this gravy train to roll up to their station). If Aereo loses, we all lose -- even if we don't use Aereo -- because the precedent will, with 100% certainty, be used to attack various legitimate internet services.
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Anonymous Coward, 21 Apr 2014 @ 1:19pm

Re: Re: Re: Re: Clarification
Nothing but FUD.

As is the statement in the article:

"even those totally in control of an individual user"

We're going to need a citation, otherwise we can just write this off as nothing but fear-mongering propaganda from the wealthy tech lobby.
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John Fenderson (profile), 21 Apr 2014 @ 1:20pm

Re: Re:
"I consider the US a pre-fascist oligopoly"

I disagree with this characterization. By the standard definitions of "fascist" and "oligopoly", there's nothing "pre-" about it. We currently are a fascist oligopoly. That's what we're trying to change.
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Anonymous Coward, 21 Apr 2014 @ 1:26pm

Re: Question:
And will they recuse themselves from the yearly pay increase / promotion evaluations for their employees who are handling this case.
When they retire and go back to working for the copyright cartels, will they be making jobs offers to those who are handling this case.
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Mike Masnick (profile), 21 Apr 2014 @ 1:30pm

Re: Clarification
Mike, where in the US Government's argument did they imply that a cloud service would have to confirm the user has a license before allowing an upload?

They did not. I'm saying that others arguing on the same side have made exactly that argument, while the US gov't's filing handwaves the issue away, saying it "need not" impact the cloud, ignoring the fact that many others arguing for the same side are clearly arguing that it will impact the cloud in a big way, by requiring said licenses.
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Anonymous Coward, 21 Apr 2014 @ 1:46pm

Re: Re:
Note that the consumer pay for free to air television via every advertised product they buy, and this applies whether or not they watch free to air television.
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Susheel (profile), 21 Apr 2014 @ 2:00pm

Re: Re: Clarification
Mike, I don't think arguing the 'same side' is poisonous here. The USG could be saying 'ignore those idiots who want the same result as we do plus other stuff that we don't'.

FYI I hope the SCOTUS finds for Aereo, but I expect if they do Congress will step in and craft a (hopefully narrow) law legislating Aereo out of existence.
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Anonymous Coward, 21 Apr 2014 @ 3:05pm

Re: Re:
This is exactly why I dropped cable long ago. I saw no value for the money. I saw so few shows I was looking forward to a month that it wasn't worth it.

Because I've been this long without a tv, I see no recognition factor in the names of shows. So I have no need to pirate as I don't know anything about them and have even less interest. As I've said before, they are not worth the bandwidth to download.

I did this long, long, before it became hip to do so.
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Kronomex, 21 Apr 2014 @ 3:46pm

Re: Question:
Somehow I get the feeling that it was after the fact.
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John Fenderson (profile), 21 Apr 2014 @ 3:51pm

Re: Re: Re:
True, but if the broadcast fees stopped coming, it wouldn't result in retail prices going up by any noticeable amount.
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Zonker, 21 Apr 2014 @ 4:24pm

Re: Nine Robes
Nice reference to the Lord of the Rings, but I thought it was IBM's lawyers who were called the Nazgul.

And yes, I also fear that SCOTUS will make renting your TV antenna from a third party illegal (Aereo's business model basically boils down to this). I don't see why cable should pay a rebroadcasting fee for free over-the-air TV either, but at least in that case they are rebroadcasting one signal to many people.
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Zonker, 21 Apr 2014 @ 4:38pm

Re:
Wrong. Aereo is simply renting a TV antenna to you for your personal use. You are the only recipient of the signal from the antenna you rent, it is not rebroadcast to anyone at all unless you do so yourself. Sure the antenna is physically located on Aereo's property instead of yours, but it is still your rented antenna.

Shall we next make owning a TV antenna on your own property illegal if you don't pay a "rebroadcasting fee" as well? After all, you must be stealing from the broadcasters if they aren't being paid for the free over-the-air broadcasts you are receiving.
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Anonymous Coward, 21 Apr 2014 @ 6:31pm

Re: Re:
Yeah, "increasing numbers" which is why only 25% of households don't have cable....

And it seems to me that the so-called "cord cutters" want to watch the content yet don't want to pay....
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Anonymous Coward, 21 Apr 2014 @ 8:42pm

Re: Re: Clarification
Of course others are arguing "big impact". Moral panic creation sometime receives a hospitable reception.
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Rekrul, 21 Apr 2014 @ 8:42pm

Re: Re: Re: Re: Re: Clarification
You don't have to look any further than YouTube to see what the copyright industry wants for all cloud computing based services.

"We're sorry, your file 'Family vacation.mp4' has been blocked because of a copyright claim by Sony Pictures."
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Anonymous Coward, 21 Apr 2014 @ 9:50pm

Re:
Bullshit, costs have little to nothing to do with cable prices. It is all about how much they can squeeze out of their monopoly or duopoly without putting any of the money back in.
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techflaws (profile), 21 Apr 2014 @ 10:46pm

Re:
Because they don't, and shouldn't, support piracy which is essentially what Aereo is?

So now people are even pirating free content? Imagine that.
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Anonymous Coward, 21 Apr 2014 @ 11:30pm

Re: Re: Re: Re: Re: Clarification
Yes, because all that fearmongering about DeCSS worked.

Oh, wait...
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Anonymous Coward, 21 Apr 2014 @ 11:31pm

Re: Re: Re: Clarification
Congress couldn't craft a subtle tool out of Clapper and Alexander. What makes you think that the legislation would be narrow?
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Anonymous Coward, 22 Apr 2014 @ 5:22am

My God...why not title this article "USG v. Internet" because that seems to be the "choice" provided here. You either support the status quo (bad) or you support "innovation" (good)?

Has it occurred to anyone prone to the above "innovation must win" that the "performance" and "transmit" clauses were added to the bill that became the 1976 act precisely because the Supreme Court and lower courts were headed down the path you advocate, and Congress was of an opposite mindset.

BTW, it is beyond tedious to attack a legal argument because of whom a lawyer may have represented in the past. The reality is that they no longer represent that client, and that lawyers are required by the rules of professional responsibility to represent their current clients, even if the positions advocated do not promote the interest of former clients. Nice try to shift focus by resort to irrelevant and misleading commentary.
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John Fenderson (profile), 22 Apr 2014 @ 6:50am

Re: Re: Re:
""increasing numbers" which is why only 25% of households don't have cable...."

According to the CEA, 17% of US households that have TV have no cable. In 2010, that was 12%. Sounds like increasing numbers to me.

"And it seems to me that the so-called "cord cutters" want to watch the content yet don't want to pay...."

And yet, many of them do pay. They just don't pay the cable companies. Of the people I know who've ditched cable, they've done so for two reasons: they're sick of dealing with the cable company, and they don't want to pay the crazy cable prices when all they really want to do is watch a couple of shows. Wanting content for free doesn't enter into it.
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jupiterkansas (profile), 22 Apr 2014 @ 7:39am

Re: Re: Re:
I'm in the same boat. Going without watching TV has not only eliminated nearly all commercial advertising from my life, but has enabled me to discover all sorts of other things to be interested in. I don't miss it one bit.
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