Supreme Court Uses The Bizarre 'Looks Like A Cable Duck' Test To Outlaw Aereo
from the well-that's-unfortunate dept
As you may have heard, this morning, the Supreme Court effectively killed off Aereo with an unfortunate and terribly problematic 6 to 3 ruling that can be summarized simply as the "looks like a duck" test. If you're not familiar with the history, decades back, when cable companies were first around, they started rebroadcasting network TV to cable subscribes, and the Supreme Court (rightly) ruled that this was perfectly legal. The broadcasters ran screaming and crying to Congress, who changed the law to create a retransmission setup, saying that if cable companies wanted to retransmit broadcast TV they had to pay fees. Aereo got around that by setting up a very different system -- or so we thought. The majority decision, written by Stephen Breyer, really just keeps going back to the fact that Aereo looks just like what those cable companies used to do... and therefore, given that Congress changed the law to outlaw that, Congress must have meant that Aereo should be illegal as well. The majority seems to view things as a black box, ignoring everything in the box. It just says "well, to end users and to networks, this is identical to the old cable systems." As for the very careful steps that Aereo took to comply with the law? The majority just brushes that off as meaningless.Given Aereo's overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here. The subscribers of the Fortnightly and Teleprompter cable systems also selected what programs to display on their receiving sets. Indeed, as we explained in Fortnightly, such a subscriber “could choose any of the . . . programs he wished to view by simply turning the knob on his own television set.” ... The same is true of an Aereo subscriber. Of course, in Fortnightly the television signals, in a sense, lurked behind the screen, ready to emerge when the subscriber turned the knob. Here the signals pursue their ordinary course of travel through the universe until today's “turn of the knob”—a click on a website—activates machinery that intercepts and reroutes them to Aereo’s subscribers over the Internet. But this difference means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into “a copy shop that provides its patrons with a library card.”Of course, that's NOT the "single" difference between the systems, and that's only part of why the majority ruling is so troubling. The second part of the ruling -- and the one that will have serious consequences for many other technologies -- is the determination that Aereo's service is not just a "performance" but a public performance. As we've discussed, this is the key part of the case, as it will determine just how badly it will impact cloud computing. The majority tries to indicate it shouldn't impact others by adding an important clause that might actually give Aereo (or others) a roadmap to get around this ruling. See if you can spot it:
Moreover, the subscribers to whom Aereo transmits television programs constitute “the public.” Aereo communicates the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other. This matters because, although the Act does not define “the public,” it specifies that an entity performs publicly when it performs at “any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” The Act thereby suggests that “the public” consists of a large group of people outside of a family and friends.Yeah, that "contemporaneously perceptible" tidbit could become pretty damn important. It seems like Aereo could just take away live TV viewing and basically become more DVR-like, requiring people to watch things on their own schedule starting with a brief delay, such that no one is really watching contemporaneously and potentially this no longer becomes a "public performance."
Still, that seems like a pretty ridiculous standard for what is and what is not public. The majority, unfortunately, brushes off concerns about how this might impact other cloud providers by going back to that "looks like a duck" test:
For one thing, the history of cable broadcast transmissions that led to the enactment of the Transmit Clause informs our conclusion that Aereo “perform[s],” but it does not determine whether different kinds of providers in different contexts also “perform.” For another, an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work....Still, there are serious concerns about this. At the very least, it's going to lead to a lot of litigation as people try to determine if other sorts of cloud storage systems are engaged in "public performances." The dissent, written by Justice Scalia, highlights how problematic this ruling is on many levels. Rather than simplifying things down to a "looks like a cable duck" test, Scalia actually looks at copyright law, and the question of whether what Aereo does is direct infringement (in fact, he later says that even though it's clearly not direct infringement, Aereo might be liable for secondary infringement), and points out that there's no reasonable way to find Aereo guilty of direct infringement.
Further, we have interpreted the term “the public” to apply to a group of individuals acting as ordinary members of the public who pay primarily to watch broadcast television programs, many of which are copyrighted. We have said that it does not extend to those who act as owners or possessors of the relevant product. And we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content
Aereo offers access to an automated system consisting of routers, servers, transcoders, and dime-sized antennae. Like a photocopier or VCR, that system lies dormant until a subscriber activates it. When a subscriber selects a program, Aereo’s system picks up the relevant broadcast signal, translates its audio and video components into digital data, stores the data in a user-specific file, and transmits that file’s contents to the subscriber via the Internet—at which point the subscriber’s laptop, tablet, or other device displays the broadcast just as an ordinary television would. The result of that process fits the statutory definition of a performance to a tee: The subscriber’s device “show[s]” the broadcast’s “images” and “make[s] the sounds accompanying” the broadcast “audible.” §101. The only question is whether those performances are the product of Aereo’s volitional conduct.Scalia further calls out Breyer for using a questionable "resemblance" test based on nothing in the actual law. He points out that it's not illegal to be "similar to cable TV," but rather you have to look at the actual law and see if Aereo violates it. He further notes that the majority ruling relies heavily on taking a few snippets of the Congressional record out of context, and then leaping to the conclusion that Aereo is too similar to those old cable systems, rather than really exploring the differences within the blackbox:
They are not. Unlike video-on-demand services, Aereo does not provide a prearranged assortment of movies and television shows. Rather, it assigns each subscriber an antenna that—like a library card—can be used to obtain whatever broadcasts are freely available. Some of those broadcasts are copyrighted; others are in the public domain. The key point is that subscribers call all the shots: Aereo’s automated system does not relay any program, copyrighted or not, until a subscriber selects the program and tells Aereo to relay it. Aereo’s operation of that system is a volitional act and a but-for cause of the resulting performances, but, as in the case of the copy shop, that degree of involvement is not enough for direct liability.
The former (which were then known as community-antenna television systems) captured the full range of broadcast signals and forwarded them to all subscribers at all times, whereas Aereo transmits only specific programs selected by the user, at specific times selected by the user. The Court acknowledges this distinction but blithely concludes that it “does not make a critical difference.” ... Even if that were true, the Court fails to account for other salient differences between the two technologies. Though cable systems started out essentially as dumb pipes that routed signals from point A to point B, ... by the 1970’s, that kind of service “ ‘no longer exist[ed],’ ” ... At the time of our Teleprompter decision, cable companies “perform[ed] the same functions as ‘broadcasters’ by deliberately selecting and importing distant signals, originating programs, [and] selling commercials,”... thus making them curators of content—more akin to video-on-demand services than copy shops. So far as the record reveals, Aereo does none of those things.Because of all of this, Scalia points out that the majority decision is not only self-contradictory, but part of it actually makes a huge part of the rest of it entirely superfluous... and then creates tremendous uncertainty.
The rationale for the Court’s ad hoc rule for cablesystem lookalikes is so broad that it renders nearly a third of the Court’s opinion superfluous. Part II of the opinion concludes that Aereo performs because it resembles a cable company, and Congress amended the Act in 1976 “to bring the activities of cable systems within [its] scope.” .... Part III of the opinion purports to address separately the question whether Aereo performs “publicly.” .... Trouble is, that question cannot remain open if Congress’s supposed intent to regulate whatever looks like a cable company must be given legal effect (as the Court says in Part II). The Act reaches only public performances, see §106(4), so Congress could not have regulated “the activities of cable systems” without deeming their retransmissions public performances. The upshot is this: If Aereo’s similarity to a cable company means that it performs, then by necessity that same characteristic means that it does so publicly, and Part III of the Court’s opinion discusses an issue that is no longer relevant—though discussing it certainly gives the opinion the “feel” of real textual analysis.Take this a step further, and as Scalia notes, suddenly you implicate a lot of other services:
Making matters worse, the Court provides no criteria for determining when its cable-TV-lookalike rule applies. Must a defendant offer access to live television to qualify? If similarity to cable-television service is the measure, then the answer must be yes. But consider the implications of that answer: Aereo would be free to do exactly what it is doing right now so long as it built mandatory time shifting into its “watch” function. Aereo would not be providing live television if it made subscribers wait to tune in until after a show’s live broadcast ended. A subscriber could watch the 7 p.m. airing of a 1-hour program any time after 8 p.m. Assuming the Court does not intend to adopt such a do-nothing rule (though it very well may), there must be some other means of identifying who is and is not subject to its guilt-by-resemblance regime.
Two other criteria come to mind. One would cover any automated service that captures and stores live television broadcasts at a user’s direction. That can’t be right, since it is exactly what remote storage digital video recorders (RS–DVRs) do, ... and the Court insists that its “limited holding” does not decide the fate of those devices.... The other potential benchmark is the one offered by the Government: The cable-TV-lookalike rule embraces any entity that “operates an integrated system, substantially dependent on physical equipment that is used in common by [its] subscribers.” ... The Court sensibly avoids that approach because it would sweep in Internet service providers and a host of other entities that quite obviously do not perform.Scalia further notes that it's quite troubling to see the Supreme Court effectively picking winners and losers in the technology space, noting as a warning how close the Court came to outlawing the VCR based on bogus claims of "we'll die!" by Hollywood.
That leaves as the criterion of cable-TV-resemblance nothing but th’ol’ totality-of-the-circumstances test (which is not a test at all but merely assertion of an intent to perform test-free, ad hoc, case-by-case evaluation). It will take years, perhaps decades, to determine which automated systems now in existence are governed by the traditional volitional-conduct test and which get the Aereo treatment. (And automated systems now in contemplation will have to take their chances.) The Court vows that its ruling will not affect cloud-storage providers and cable television systems..., but it cannot deliver on that promise given the imprecision of its result-driven rule. Indeed, the difficulties inherent in the Court’s makeshift approach will become apparent in this very case. Today’s decision addresses the legality of Aereo’s “watch” function, which provides nearly contemporaneous access to live broadcasts. On remand, one of the first questions the lower courts will face is whether Aereo’s “record” function, which allows subscribers to save a program while it is airing and watch it later, infringes the Networks’ public-performance right.
We came within one vote of declaring the VCR contraband 30 years ago in Sony.... The dissent in that case was driven in part by the plaintiffs’ prediction that VCR technology would wreak all manner of havoc in the television and movie industries. ... (arguing that VCRs “directly threatened” the bottom line of “[e]very broadcaster”).Unfortunately, the majority decided to go in the other direction. And it has just created a huge mess for cloud computing that may result in tremendous stifling of important innovation online.
The Networks make similarly dire predictions about Aereo. We are told that nothing less than “the very existence of broadcast television as we know it” is at stake. .... Aereo and its amici dispute those forecasts and make a few of their own, suggesting that a decision in the Networks’ favor will stifle technological innovation and imperil billions of dollars of investments in cloud-storage services. We are in no position to judge the validity of those self-interested claims or to foresee the path of future technological development.... Hence, the proper course is not to bend and twist the Act’s terms in an effort to produce a just outcome, but to apply the law as it stands and leave to Congress the task of deciding whether the Copyright Act needs an upgrade.
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Filed Under: antonin scalia, cable services, cloud computing, direct infringement, looks like a duck, retransmission, stephen breyer, supreme court
Companies: aereo
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Don't worry, the NSA will help.
Further legal uncertainty is just another bullet in that corpse.
Innovation will not be taking place here.
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Re: Don't worry, the NSA will help.
Don't get me wrong - I'm sure there's trustworthy countries out there, but it certainly isn't as simple as being everybody except the US.
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So It's A Cable System
Is the fee structure stacked against them?
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Re: So It's A Cable System
On Demand everything, per channel subscriptions, available on multiple devices. This is something I would definitely pay for.
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Given the animosity the broadcasters have to Aereo, they'll never agree to take less than they're getting from the big cable companies, so Aereo will have to rely on the DVR capability and "watch anywhere" to outweigh the loss of their price advantage.
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This could have been a lot worse
However, this could have been much worse. It appears the Supreme Court is hanging its hat on the "looks like a duck" rationale. As bad as that rationale is, this should not impact cloud services much.
Then again, trial courts can be stupid and read Supreme Court decisions in unexpected ways. So the problem for cloud providers is that the word "should" is in there, which means there is no bright line rule and any such business will expose a provider to certain litigation risks.
Terrible decision. But it could have been much worse.
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I think this is right. The Court was very deliberate in it's "like a duck" assertion. That was to specifically inoculate cloud computing. I'm not sure all of the hand wringing and doomsday forecasts are warranted. At all.
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What objective test can be devised, based on this ruling, that separates Aereo from other cloud services? Or is the only option long drawn out court battles for every new service that pops up on the internet?
Scalia's right. This will take years and numerous cases to sort out. The only winners are (as usual) the lawyers. I found it enormously funny when the second mention I saw of Aereo today was that media company's stocks shot up when the ruling was announced - Wall Street chasing quarterly profits that won't even materialize in the short term.
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Seriously? Do these investors really think that Aereo subscribers are going to splice their cords back together and come a'running back to cable?
I would think most would probably invest in a $20 set of rabbit ears or do without, rather than subscribe to cable again.
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Probably. The companies and their investors seem to think that it is impossible for anyone to actually have a life and not need TV at all.
"most would probably invest in a $20 set of rabbit ears"
Since the digital switchover, lots of people can no longer receive broadcast TV at all except through cable, rabbit ears or digital converters notwithstanding.
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Do you have something to back that up because my experience is that most people now have access to more broadcast channels than ever before with superb picture quality.
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I suspect it has a lot to do with geography. Those digital signals don't have the coverage and penetration power that the analog signals did. Line of sight is much more important for them. If you don't have line of sight, then things get very, very dodgy.
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I keep hearing about this superb picture quality, but every time I've actually seen a digital TV broadcast, the picture quality is objectively worse than it was during the analog days. And by a lot, not by a little. This is also market-dependent (it depends on how many subchannels they divide their broadcast up into), but there's no question that in my state, the digital switchover has been nothing but a degradation.
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This is my fear. Loss of broadcast TV isn't really that big of a deal. Cell phone service has always been terrible, and remains so to this day.
Radio, however, is critical infrastructure during times of upheaval and crisis. It needs to be robust. If radio is switched to digital, the robustness is lost and we've lost the main way to keep people informed when the shit hits the fan.
For proof of this, just look at all the various attempts to get the two-way radios of emergency responders to go digital -- in every case know of, the result has been degradation of service so large that it counts as a scandal.
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The function of emergency broadcasting was also held by television. Remember those old "This is a test of the Emergency Broadcast System ... This is only a test ..." TV interruptions that used to air regularly on TV? (It's somewhat ironic that the system was abandoned by the time of the OBL incident)
Those old multi-channel "emergency" radios have become largely useless relics today in the modern digital age. The TV stations (audio) they used to pick up are gone. Shortwave radio became a casualty of the internet. I think NOAA weather radio is still around -- but for how long is uncertain.
If it really came down to some kind of "SHTF" situation, people would be searching their grandparent's attics for CB radios. At least when the United States goes to war, among the first things that get targeted for destruction are TV and radio broadcast facilities, as well as telephone and cellular networks (and of course internet service would be taken down as well). Maybe it won't matter much to people who suddenly find themselves without either electricity or water. If this country ever got into a civil war of some kind, I'm sure the only communication channels remaining would be (illicit) personal radio broadcasters.
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As for the "walks like a duck" argument, I think it's much too simplified of an argument to be used by the supreme court, and is a very slippery slope, as others have pointed out.
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So instead of laws that give specific guidance on what is illegal, you're arguing that laws are based on what "should" be illegal?
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And you still haven't answered the question. What objective test can be devised from this ruling that separates what Aereo does from what other cloud providers do?
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Really trivial to see a lawyer try and compare that to this case.
I have legal rights to broadcast TV signals. Aereo simply puts them in the 'locker' of the internet stream for me.
The technology shift here is that previously the only way for many people to get decent OTA reception was through a cable. Now a competing cable exists, the internet, which has an even bigger reach.
As a resident of DC, do I have rights to the OTA broadcasts of NYC? I'd argue I do since they are free. It hasn't been a question until now since getting OTA signal from NYC to DC was prohibitive. Aereo, while not yet providing that specific service, shows how that is now trivially possible. Yet somehow that's illegal but if I were to run my own cable all the way to NYC and put an antenna on it...it would be legal?
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Who really wins?
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If the media companies ever gain their "monopoly" on legal services it'll only drive more people to piracy. They've already established it is impossible for them to offer a service that people will buy (*cough* UltraViolet *cough*). Once they get an effective monopoly it will only decrease the quality of their service (see: Comcast). Thus the only solution to the slower streaming speeds will be downloading at a slow speed and watching at full speed from a local hard drive.
The more restrictions you place on a good, the less value that good has to a consumer. If you had a choice between a car that ran anywhere, and a car that only ran on weekdays and wouldn't start without "checking in" to the dealership via a semireliable cell connection, which would you buy? The second car would have to be a *lot* cheaper to be purchased by anyone, even if the actual performance of the vehicle were the same.
The media companies are trying to sell the second car at the price of the first car. And, shockingly, people aren't buying it. And they won't, even if the second car has the ability to drive in a special lane. That lane will just be empty, because the extra speed won't be worth the hassle of sometimes not being able to drive at all.
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I can't remember
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Intern: Aye aye, Sir. Want me to give this to your normal writer?
Scalia: Nah. Don't bother him with it. Don't care about this case so just write whatever you want.
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"Public Performance" means "Performance to non-copyright owners" in (3)(b)
``This is relevant because when an entity performs to a
set of people, whether they constitute “the public” often depends upon their relationship to the underlying work.''
I believe there is a reasonable interpretation that a vexatious litigant could make that this applies to things like dropbox, since this sentence (or its context) does not require a transmission of a single audiovideo item to a set of people, but the transmission of a large number of audiovideo items to a large number of people, who are not the copyright owners.
I won't be shocked when this sentence shows up in lawsuits attacking cloud services.
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Hmmm
What has been forgotten by the US proponents (I won't call them monopolies, though they seem to resemble such) is that their competitors abroad are hardly going to sit around to wait for them to make important decisions. The US, though an important market, is not the only one and there are other markets now available to them that weren't before.
The EU 30 years ago was fragmented to those who wanted to import, with varying requirements for each country (remember VCRs having to be slightly varied for importing into each country?). Now it's much easier to do so. And it's larger than the US in population.
Surely new US based start-up companies must now be beginning to wonder if there's any real point in remaining in the US if they're likely to have the fruits of their innovation taken away from them in such arbitrary fashion
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This whole argument from the broadcasters just never made sense to me, as well as the reason people would actually spend money on Aero in the first place...
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Having said that we never used Aereo that much anyway. I do regret, however, what I consider to be a narrow-minded decision by the SCOTUS but I am not surprised at all.
If not for Netflix I would have to build a tall outside antenna to receive TV signals where I live.
One last thing- choices and more choices are good. Restricting choices is bad. All my NSHO- YMMV.
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I was just confused because the cost of an antenna and a digital tuner for a HTPC would be able to do the same at a fraction of the costs in the long haul.
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What? That makes no sense. You're suggesting that essentially every TV viewer who doesn't have cable is required to have a broadcast license? You would only need a license if you wanted to redistribute the signal or programming.
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The Court would probably disagree that that logic holds, but many other people (including lawyers and other judges) would probably support it.
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War does indeed make strange bedfellows.
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Everyone around here uses the duck analogy for everything
It was never a serious startup, just a weird legal hack to get some leverage in retransmission negotiations. It was never a viable or useful technology. Why create a bazillion antenna just to get around some impediment.
So let's celebrate that the Supreme Court called a duck a duck. It was just a cheap, stupid trick that didn't add to the world at all.
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Re: Everyone around here uses the duck analogy for everything
Ad hominem.
"It was never a serious startup, just a weird legal hack to get some leverage in retransmission negotiations. It was never a viable or useful technology. Why create a bazillion antenna just to get around some impediment."
Because it's fun seeing the copyright believers trying to juggle so many contradictory variables when reality consistently collides with their beliefs.
"So let's celebrate that the Supreme Court called a duck a duck. It was just a cheap, stupid trick that didn't add to the world at all."
The fact that the Supreme Court of the United States of America bickered over the philosophical ramifications of tiny antenna at ALL was enough for me. I really didn't care if Aereo won or lost.
It's amazing how far people will go to insist that ownership of expression and freedom of expression are reconcilable.
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Actually, your example is simply an insult, not an ad-hom. An ad-hom is when your argument for why someone is wrong is because of something about the person rather than the argument itself.
To say "you're a moron" is a simple insult. To say "you're wrong because you're a moron" is an ad-hom.
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You may as well say "because of unconnected issue X e.g. 'trisomic idiot' therefore I'm right".
Specifically, the former relies on the hypocrisy fallacy, a form of ad hominem: "This man says murder is wrong but always kills people, therefore murder is right!". Or "This person is against the SC generalising but generalises way too much himself when criticising copyright, therefore generalisation is right!"
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Re: Everyone around here uses the duck analogy for everything
Because the legal system sucks and creates arbitrary impediments that shouldn't exist. Anything being broadcasted should be freely recordable, modifiable, and retransmittable as I see fit. If it crosses public property or someone's private property then they should be able to do anything they want with it.
Furthermore, it's unacceptable that the government would even grant monopoly privileges on broadcasting spectra to private entities or for profit. Any broadcasting monopolies should be non-commercial. Things like GPS, emergency broadcasting, etc... are justifiable (so long as they have no commercials) but for any commercials to take up exclusive broadcasting space is an unjustified abrogation of my natural right to freely broadcast on said spectra. I have just as much a natural right to broadcast on a spectra as anyone else and no government has the right to take away my right and give someone else exclusive privileges.
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Re: Re: Everyone around here uses the duck analogy for everything
Face it. Commerce is just another form of how people interact. And the places that claim they're "non-commercial" are just faking it because they take home salaries, often big ones.
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Re: Re: Re: Everyone around here uses the duck analogy for everything
Likewise we need to make sure that the government doesn't end up being inefficient by overpaying their employees and using money for something other than the public good (ie: parties, helicopter joyrides, etc... Unfortunately this sort of thing does happen).
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Re: Re: Re: Re: Everyone around here uses the duck analogy for everything
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Re: Everyone around here uses the duck analogy for everything
Don't follow the law, and you still whine.
Eventually enough people will get that there's no use in bending over backwards just to please nitwits like you, because pleasing nitwits like you is never going to happen.
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Re: Everyone around here uses the duck analogy for everything
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Re: Everyone around here uses the duck analogy for everything
Bob's definition of complying with (crazy) copyright laws. Go figure.
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Re: Everyone around here uses the duck analogy for everything
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Despite the popular opinion, SCOTUS offered the correct ruling because both transmissions violated the law as it is written. There is, technologically, no difference between the way the signal is pulled and transmitted over cable vs. being pulled and transmitted over the internet, which, for many, is their cable service.
This is why the "if it quacks like a duck" was applied, and we certainly can't blame them given how restricted their ruling had to be. The "service" element didn't matter, either, because it all boiled down to a piece of wire, something Techdirt mentioned in the past regarding the Last Mile.
Diller wasted his money on this venture, and instead, should have invested those millions bribing, er, lobbying Congress to change the law first, because these laws are not only so old, they're contradictory.
The entire system needs to be reclassified as a digital distribution system, not a broadcast or utility system, because it's long, long overdue to limit the definition of "transmission" over a specific industry method and its rules.
Until then, get ready to watch Corporate America destroy the internet, one piece at a time.
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If the Supreme Court can use a "if it looks like a duck" reasoning, then so can I. I live in an area that gets broadcast television signals from all the major networks showing most TV programs. I pay for a cable TV subscription that provides me with access to most shows. So, both to me and the creator of those TV programs, I have legal access. It is only a "technological difference" between me watching the show from a DVR connected to an antenna or coax and from me watching on my computer by downloading the show from a torrent.
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According to the Supreme Court here, if anyone in your neighborhood attempts to watch the same station on their equipment as you do on yours at the same time, that constitutes a public performance and requires that you need to pay for a license from the TV station to watch it. This is apparently because this behavior looks identical to cable service as far as you or the broadcaster is concerned.
The fact that a digital converter box is now required to convert and encode the TV signal such that it can be sent across a cable to your analog TV for viewing is enough to be a re-transmission under this new interpretation (unless what the court really meant is that the magic words "over the internet" have to be invoked for this to be infringing).
So in short, it looks like SCOTUS just made TV licenses a requirement to watch digital OTA live broadcast TV in the US.
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Not That Bothered
I would summarize the majority and the dissent as follows:
Majority (Breyer): "Back in the early days of cable TV, we said that broadcast retransmission didn't violate the Copyright Act. Congress rewrote the law to say it did. We take that to mean that, if you're retransmitting, no matter the technology, Congress doesn't want you to."
Dissent (Scalia): "If Congress wrote the law so that someone could violate the spirit but not the letter with new technology, that's not the Court's problem."
I am not offended by the majority's reasoning. Everyone admits that Aereo is the way it is at least in part because it seemed to be on the non-infringing side of the law, but if you're not a libertarian (none of the Supreme Court is), Aereo seems a little "too clever by half"; basically designed in the hope that the Court would choose the letter of the law over the spirit.
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Re: Not That Bothered
Working within the letter of the law while violating the spirit is something that is routinely done, and the courts routinely support, by the rich & powerful. They even defend themselves in court using that exact argument: the law literally allows it, so you can't rule against it.
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Re: Re: Not That Bothered
1) Riley: cops can't just go through your smartphone without a warrant;
2) Dudenhoffer: Employee stock ownership plans don't get to screw their employees just because they only invest in the employer's stock.
The Supreme Court has biases based on the fact that they're all lawyers and most worked for the government, but except for abortion and a few other obviously political issues, those biases are a lot more idiosyncratic than people like to think.
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Re: Re: Not That Bothered
Very well said. To expand on that, I should point out that "the little people" are routinely sent to prison --yes, prison-- for doing the same sort of thing that all the rich and powerful habitually engage in and ALWAYS get away with: Gerrymandering their finances into an IRS-beating arrangement.
In other words, to strategically stay within the letter of the law is a crime in and of itself -- but only to those on the bottom of the food chain.
http://www.justice.gov/tax/usaopress/2005/txdv052005_12_19_gandhi_sentence.htm
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Re: Not That Bothered
This is supposed to be a nation of laws, not men.
If it looks like a duck, then it's a duck, right? If I deliberately structure my finances to reduce my tax liability, can I be found guilty of tax fraud? If politicians take donations from lobbyists (legally according to the law) can they be found guilty of corruption and the lobbyists guilty of bribery?
I normally enjoy lambasting the peculiarities of law and lawyers. I find it amusing that I'm arguing this point against a lawyer.
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Re: Re: Not That Bothered
Laws mean nothing without a person to interpret them.
The Constitution and the Public Laws of the United States are not magic words.
I don't mean that facetiously, I just mean to say that the Constitution only protects a right to the extent that enough of us agree that a right exists. For example, in the mid-1980's, same-sex intimacy was absolutely unprotected by the Constitution, despite a decent argument that it should be. In 2003, enough of us agreed that the underlying principles of the Constitution did, in fact, apply to those relationships.
There is no way to avoid this ebb and flow of rights unless we let a computer decide all our cases; even then, someone has to program its basic principles, and how libertarian/pragmatic/literal/equitable should such a computer be?
So, yeah, the Supreme Court's argument in the Aereo case was a lot like a teenager's parent saying, "you think that you did something clever, but we think that's still against the rules," but the way the legal system works, that's to be expected. If you want, I can give you the 1L pseudohistory lesson as to why it works that way, but these kind of "common sense but not the literal word of the law" judgments are baked into the American legal system.
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Re: Re: Re: Not That Bothered
So therein lies part of the problem, the government views the people it is supposed to represent as children that have to be controlled and not listened to.
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Re: Re: Re: Not That Bothered
Nobody will bother to follow the rules if following the rules doesn't matter. (And this looks more like SCOTUS didn't like Congress changing the broadcast rules they had previously declared non-infringing and wants to stick it to Congress, but Congress couldn't care less and Aereo had nothing to do with their dispute.)
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Re: Not That Bothered
Are you fucking kidding me? NOW the SCOTUS cares about the "spirit" of the law? On THIS issue? Where in the fucking blue hell have they been on the "spirit" of the law with regards to a host of other FAR MORE IMPORTANT issues, such as 4th Amendment protections, 1st Amendment issues, and campaign finance laws?
Oh, right, this serves the corporate overlords interests, so of course, NOW they care about the "spirit" of the law.
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Re: Re: Not That Bothered
You can make the argument that the Supreme Court, selected primarily from the most politically striving of the elitest part of the elite legal class, has too much sympathy for people in the top 1% of wealth and power like themselves, and don't really understand what "the little guy" feels. This is certainly true to some extent, but it's impossible to remedy as when you make someone an elite, they tend to preserve their interests as an elite.
However, the Supreme Court is not bought by "corporations," whatever that means. Looking over all the decisions the Court makes, they decide things based on their view of the law, which is a definite bias but doesn't map exactly to either platform of the major political parties.
As part of my job, I have to follow the Supreme Court on the cases nobody who isn't a "corporation" cares about. At my job, the biggest Supreme Court case today was Fifth Third Bancorp v. Dudenhoffer, about whether people who get screwed by their employee stock ownership plans get to sue their employers when the company did something bad and the stock goes down but the company doesn't completely dissolve.
Most of the federal appeals courts said no. All the corporate defense lawyers wanted the answer to be no. The Supreme Court said, yes, the little guy can sue.
They said the same thing on Monday when the court said that Halliburton (can you get more "corporate overlord" than Halliburton?) can be sued by its shareholders for lying about its corporate prospects. The corporate defense lawyers were hoping the Supreme Court would kill "meritless" securities class actions dead. But they didn't.
Sometimes the Court comes out for the powerful. But it's not because they're "bought."
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Re: Re: Re: Not That Bothered
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Is Aereo just renting an antenna?
Sounds like they are actually renting part or all of a TV set.
Current over the air TV is digital.
Antenna to receiver to computer to display.
Aereo is
Antenna to receiver to computer to
internet pipe to
computer to display.
.
When you add the recording function it becomes more like renting a room.
And if your renting a room both are legal!
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Ok, I won't watch broadcast TV at all then, less eyeballs on your ads means less money.
You lose by 'winning' Broadcast TV.
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You don't need to watch tv for them to make money off of you -- Re:
If your cable company is like my cable company (the biggest one), having internet by itself is $20 more than bundling it with "limited basic" (ie, over the air channels) which just so happen to cost $23.
So basically, whether you subscribe to OTA or not, if you get your internet from your cable co, you're probably still paying for OTA channels.
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Re: You don't need to watch tv for them to make money off of you -- Re:
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Re: You don't need to watch tv for them to make money off of you -- Re:
2) Broadcast TV stations are not cable TV stations. Cable providers often provide Internet connections as well, broadcast providers aren't typically in the ISP business (unless an ISP buys them up, like Comcast buying NBC).
3) Even if Broadcast companies were ISPs, do you really think they'd keep throwing money into the broadcast TV business if everyone stopped watching? Only a moron would, they'd cut their losses and shut down an unprofitable part of their company.
4) I don't have cable TV, nor will I ever buy it, it's too expensive to be worth it's value.
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Re: Re: You don't need to watch tv for them to make money off of you -- Re:
Sorry for being a grammar Nazi here but 'its' is possessive while "it's" means it is. If that was a typo or if English is not your first language then I understand.
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Yeah, it would no longer be a public performance, but it WOULD be a public distribution. Keep squirming, Mike. I'm so glad your tech buddies lost. Made my day.
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(it made my day too)..
But it is true, old 'loophole mansick' fails again.
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- Cloud-based music streaming services which allow users to upload their own music files?
- Media streaming software such as Plex, which integrates with Dropbox and other cloud storage providers?
- Cloud storage providers themselves, for allowing people to store and transmit songs, movies and TV shows without the copyright holder's permission?
Am I missing any others?
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Re: Cloud etc.
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I guess "Interference with an Existing Business Model" is now officially a tortuous act.
It's a sad, sad day for free market capitalism and the spirit of competition that made our nation great.
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Re:
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Re: Re:
Bullshit. They were streaming an OTA FREE signal where the fee was already paid for by the entity who owns the broadcast tower. If Aereo has to now also pay a retransmission fee do do this, the broadcast companies are double dipping. Plain and simple.
The fact that they rely upon a technological exploitation not in existence when the law was crafted doesn't see to be much of an argument.
Really? What "technological exploitation" is so different now, as opposed to when Cablevison was ruled on? Only difference is the length of the cord, as far as I can tell.
I don't see how that's unfair, but do understand that it offends the sensibilities of the self-entitled "get something of value for nothing" attitude that permeates this shithole.
Ummm, What is difference between me receiving my local channels via Aereo or over my own antenna on my roof. How is the consumer "getting something of value for nothing" - it's still as commercial riddled as ever. Aereo charged for providing a service, not for providing the content, which anyone can get for free anyways.
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Re: Re: Re:
Aereo gets something of value for nothing- the ability to retransmit for profit. If Aereo is providing a service, not content- how does it differ from cable or satellite? All are delivering content for a fee. Quack, quack, quack.
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Re: Re: Re: Re:
I wouldn't compare them to cable or satellite because it's happening after it's already been broadcast OTA (and the broadcast fees have already been paid) for anyone who as an antenna. Aereo is simply renting you equipment to receive a signal where all the broadcast fees have already been paid.
My local Rent-to-Own provides me a (for profit) service that rents me a TV, DVR and an antenna. Why do they not have to pay rebroadcast fees to send the signal down from my roof to my living room?
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Re: Re: Re: Re: Re:
Ummm... maybe because their entire business model doesn't involve rebroadcasting a signal that they capture at their place of business and charge a subscription fee.
You need to look at what the court examined. Aereo is in the same business as the cable companies, except it doesn't pay a retrans fee. I know you'd like to throw sand in our eyes and pretend its something different, but its not.
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The court decided that the technological implementation doesn't matter, whereas it's exactly the implementation that makes the distinction between Aereo doing the capturing and rebroadcasting it, and the consumer capturing it without rebroadcasting it.
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Re: "If it looks like a Mafia extortion racket..."
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Re: Re: Re: Re: Re: Re:
So than you agree that this was really an "Interference with a Existing Business Model" case, right?
Aereo didn't pay retransmission fees because they followed the Cablevision ruling to the letter and were found to be infringing anyways because their business model looked too much like a cable company.
By your own argument, it looks like SCOTUS ruled on the "Interference of a Business Model" more so than anything actually being illegal.
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Re: Re: Re: Re:
So what? Getting value for free isn't illegal. If I use a coupon that was shoved into my mailbox, is that illegal?
If Aereo is providing a service, not content- how does it differ from cable or satellite? All are delivering content for a fee. Quack, quack, quack.
If I live in a broadcast area, or have paid my cable bill, how does my downloading the same program from The Pirate Bay differ? I'm watching a show I'm legally entitled to acquire. Quack quack quack.
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Re: Re: Re: Re: Re:
SCOTUS just upheld a conviction of a straw purchaser of a gun. His argument was that the guy he bought it for was not a member of a prohibited class (i.e. felon, mentally ill, etc) Process matters numbnuts.
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Re: Re: Re: Re: Re: Re:
That's not what this ruling indicates. Let me quote from the majority:
"this sole technological difference between Aereo and traditional cable companies does not make a critical difference here"
Since technological differences don't matter according to this ruling, then give me a sound reasoning that shows how my act of watching a show I downloaded from a torrent I got from The Pirate Bay (assume all download, that I didn't upload anything to another user) isn't the same as my act of watching the same show that I received via an antenna located on my house.
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Re: Re: Re: Re: Re: Re: Re:
It is being monetized by TPB. I don't know why you continue to ignore the grifting. For you, the experience may be the same but the issue is the grifters making money on content that they have no right to exploit. Surely even you can understand such simple concept?
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Re: Re: Re: Re: Re: Re: Re: Re:
Just for the sake of argument and I know this is off-topic now:
What if someone doesn't use TPB or any other monetized torrent index and uses something like BTDigg (which isn't monetized at all) that simply indexes existing torrents that are already floating in the swarm? Does that make a difference to your argument?
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I've heard you can tweak the older open source bittorrent code to not upload, but the vast vast majority of people are also uploading.
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Re:
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What annoys me the most...
A pharmacist sure looks like a drug dealer. Clearly, Congress doesn't like drug dealers, so pharmacists should be outlawed!
Lobbying sure looks a lot like bribery. Clearly, Congress (well, at least, publicly) doesn't like bribes, so lobbying should be outlawed! (I'd agree, but hey, it's still a point).
Controlled detonations sure look a lot like bombings. Congress clearly doesn't want bombings, so controlled detonations should be outlawed!
Because clearly the grey areas in American law aren't big enough.
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Can we at least get our public airwaves back then if no one is legally allowed to receive the broadcast TV signals without a TV license anymore? All this time I thought that the US did not operate on the TV license system like they do in Europe. They promised that we would still be able to watch the same broadcast OTA TV after the digital conversion, but didn't tell us we would now need a broadcast license to do so.
It would also be nice if the SCOTUS would stop creating new law or changing existing ones like this.
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...in the USA
...in the USA. This ruling only applies to the USA. The world is much bigger than that.
Yes, it might mean that the USA slides even more compared to the rest of the world. That's their problem.
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Re: ...in the USA
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Suppose a torrent site was charging its users a subscription fee to download movies, music and whatnot. Everyone can bitch and moan all they want, but it's still copyright infringement.
The problem was that Aereo made the argument that they were capturing the free broadcasts but what everyone forgets to understand is that Aereo was turning around and charging subscribers for those programs without paying any kind of conpensation to the networks who own that content.
The Supreme Court saw through Aereo's scam and came to the conclusion that if they were allowed to continue that the networks would simply transfer all of their broadcasting to "cable and satellite" networks, ending free TV.
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Re:
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Re:
Can you think of any other areas where it is illegal to pay someone to do something for you that you could legally do yourself?
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Yes. Buy a gun. SCOTUS just ruled on that last week. Next?
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Error
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Re: Error
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Move to Canada
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Re:
And if they won in the other Jurisdiction's highest court (it doesn't have to only be Canada.. could be anywhere on the planet - or off it even) then that becomes absolute unless that jurisdiction kowtows to the USA and passes new legislation.
See SCOTUS decisions have no bearing or weight outside the USA other than as "oh look see what the silly yanks have done here" in most instances.
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Based on that reasoning...
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Re:
However, you've got a good idea for the next startup that wants to test this out and challenge the duck reasoning. Personally, I'd do away with the DVR/set top box altogether.
Provide (might need to be an outright sale of) software that would allow a user to configure their own storage via Dropbox, AWS, whatever other cloud provider you want to choose, or local storage on a PC. Rent the antennas. Profit.
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Re:
However, I'm sure the supreme court would use their "quacks like a duck" argument again, since they clearly don't care about the specifics of the technology (which shouldn't violate copyright laws in its current configuration, imo, since they're merely renting tv tuners and storage space, as is).
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Hell, I might as well go subscribe to redstate now...
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Sell rather than lease?
Aereo's service is basically a Slingbox in a server farm. If setting up a Slingbox at my friends house is legal then buying a "slingbox-like-device" that sits in a server room with thousands of others should also be legal, right?
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Re: Sell rather than lease?
https://www.techdirt.com/articles/20140625/09340227683/supreme-court-uses-bizarre-looks-like-c able-duck-test-to-outlaw-aereo.shtml#c915
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special interests
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this is it
the best thing here is portraying Aereo as a little guy, an upstart. yep, they are that right now. but had they been ruled legal, they'd have grown exponentially, then been bought out by, oh, to pick a company out of a hat, Google, the company Techdirt considers synonymous with freedom. And then they'd really be little guys--the biggest little guys you can name.
Aereo was and would have been as disruptive to corporate culture as Google is. Just one pot of investor money fighting another.
no, i have to admit I really also love the typical Techdirt "I'm doing the same thing so now I'm breakin the law" and "this means cloud computing is dead" stuff. Where else can I turn for analyses so obviously contrary to fact that they make my head spin as good as psychedelics once did? You know, like back when we had 1000s of comments here saying everyone was going to be put in jail because the Feds use the CFAA to go after everyone who violates website TOSs and is not alleged to have committed an actual crime along the way, despite not having a single instance of that ever happening, let alone passing the laugh test with a real live judge? The fantasy world of Techdirt is a special fantasy world indeed.
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Re: this is it
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Re: this is it
Christ, you even admit they're a real startup, but you think that ruling that literally kill startups (and have a chilling effect on any new ones) is fine because at some point in the nebulous future they *might* have been bought by a corporation you don't like? Then, you see no irony in supporting this ruling, which is made directly in the support of current major corporations and their business models, while claiming that you're taking an anti-corporate stance?
"Aereo was and would have been as disruptive to corporate culture as Google is"
...and? Cable TV was also a disruptive technology at one point as well, as was TV itself. Why do you support one technology over the other, when all are equally disruptive?
Plus, Google's success, at least initially, was because they were the best at delivering what the customer actually wanted. Should their search engine have been shut down because it beat Yahoo and Altavista to the ground?
"You know, like back when we had 1000s of comments here saying everyone was going to be put in jail because the Feds use the CFAA to go after everyone who violates website TOSs"
Citation needed.
"The fantasy world of Techdirt is a special fantasy world indeed."
The sky is blue here. Do you even have a sky where you're posting from? It doesn't seem like the same planet, at least.
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Drats!
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This ruling was made for one clear and simple reason.
_____IT IS A DUCK_____
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So if it looks like a duck, floats like a duck, or wood or very small stones, your a witch. (it's so fatso)
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Stand up and cheer
I think that the key point here is that cloud services didn't just get a pass here, they got a serious boost by separating them away from a company trying to hide among them and act like a cloud service. The court seems to be way more interested in the source of the material and it's distribution. All the tricky antenna per user dodges in the world can't hide the things the system really does:
It is exactly the same as a cable distribution system. They receive the signal, and they distribute it to you. You pick the channel, they do the distribution. That is a business and business model that is both federally regulated and subject to copyright law.
I suspect most of the cloud storage people are having quiet celebrations today, knowing that the dodged a bullet. SCOTUS didn't tie them to the problematic pseudo cable business, and as a result, they are clear for now.
Who is quivering in fear? AirBnB and Uber are two I can think of. Both of them have an issue of "walks like a duck", especially Uber. It's really easy to see how this judgement could infer that attempts to get around regulation (even on a local level) may not work out.
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Aereo verdict
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peek and return.
In the process, they come along everything else and they download that too.
Lesson: give us what we want, where we want, when we want or suffer. This may seem like a victory, but could not have been a bigger loss.
Guaranteed.
I cut the cable years ago. Usenet, torrents, you can't stop the Rising Tide.
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peek and return.
In the process, they come along everything else and they download that too.
Lesson: give us what we want, where we want, when we want or suffer. This may seem like a victory, but could not have been a bigger loss.
Guaranteed.
I cut the cable years ago. Usenet, torrents, you can't stop the Rising Tide.
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Reality of retransmission law.
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SCOTUS often relies on the duck test
In fact, numerous posts here criticize judges who rule that all this new technology is not covered under existing laws.
Really, there's nothing to see here.
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Re: SCOTUS often relies on the duck test
...These aren't the droids you're looking for.
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Re: SCOTUS often relies on the duck test
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Public Broadcasting
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Pssssst. Keep it on the down-low, they are not really ducks.
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Who gets the "Aereo treatment?"
No, it's much easier than that. If your automated system disrupts a powerful incumbent, you will get the "Aereo treatment."
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