Did Aereo Kill The Cablevision Ruling That Enabled So Much Innovation? Who The Hell Knows?
from the and-that's-why-it's-a-problem... dept
We've already discussed how the Aereo ruling is a disaster because of its lack of guidance, and a perfect example of that is that reading the decision you would have no idea whether or not it outlaws Cablevision's remote DVR service. None. It all depends on who you talk to. During the oral arguments, it appeared that the Justices recognized that they wanted to keep the important 2nd Circuit ruling that found Cablevision's remote DVR legal, with Justices even asking lawyers to take that ruling as precedent (even though it's not, since the Supreme Court refused to review that ruling). That's why it's been somewhat shocking to many that the final ruling from the Supreme Court doesn't even address Cablevision, other than an aside in a footnote.And that means it's basically an open question as to whether or not Cablevision's remote DVR is still legal or not.
Cablevision, not surprisingly, insists that the ruling vindicates its position. You may recall that even though Aereo was relying on the Cablevision precedent, Cablevision sided with the broadcasters, stupidly believing that the Supreme Court would reject Aereo while preserving the Cablevision ruling. So, when the ruling came out, the company announced victory:
"We are gratified that the Court's decision adopted a sensible middle ground, holding that unlicensed retransmission services like Aereo violate the copyright law, while protecting consumer-friendly, cloud-based technologies, such as RS-DVR. The real winner today is the consumer who will continue to benefit from future innovation."The problem is that's not true. The Court doesn't really say a damn thing about Cablevision, and leaves it out to hang based on the amorphous "looks like a" test. Law professor James Grimmelman is pretty sure that the Cablevision ruling is now dead, because the Aereo ruling totally overshadows it and creates this new standard that would clearly wipe out the Cablevision standard. Similarly, law professor Eric Goldman wonders what's left of that ruling:
... because the court said Aereo took the legally significant actions, it's possible this ruling overturned the 2008 Second Circuit ruling, exposing DVR service operators to new liability. The opinion further reinforces the riskiness of DVR-as-a-service when it says the simultaneous delivery of content to multiple viewers is an infringement, even if the system stores and delivers a personal copy for each viewer (the court later implies that even simultaneous delivery isn't required to violate the law).Another commentator, Deborah Goldman, notes that the SCOTUS ruling "eviscerates" that ruling.
However, not everyone is convinced. Matt Schruers suggests that the Supreme Court effectively side-stepped the question by avoiding even looking at the DVR features of Aereo's system:
Importantly, yesterday's decision doesn't reach the question of Aereo's DVR-like features, and it seems clear that the Court's opinion does not aim to upset Cablevision.But, of course, there's a difference between aiming to upset Cablevision and actually upsetting Cablevision, and there's nothing in the ruling that suggests a second shot at a remote DVR system won't turn out quite differently, given that plaintiffs can now use the "looks like a duck" test, rather than ever looking into the black box to see if the company hosting the DVR is really doing any infringement. And it gets especially worrisome with non-tech-savvy judges. While Schruers isn't sure if this ruling upsets the Cablevision standard, he is worried about the resulting uncertainty:
On the other hand, the Court's approach offers technology lawyers counseling clients little guidance. Who can predict whether a non-tech savvy federal judge will think that the next innovative service "looks like cable"? Yesterday's decision creates considerable uncertainty, suggesting that lawyers should counsel their clients based on what analogy will most appeal to a federal judge in the distant future. The Court — like others in the lead-up to the decision — promises its opinion won't threaten new technology, but as the dissent points out, it cannot deliver on that promise.And this is not a small issue. As we've noted, a study by Harvard professor Josh Lerner found that the certainty created by the Cablevision ruling, resulted in somewhere around a billion dollars in new investment. Take that certainty away... and a lot of investment is about to go elsewhere.
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Filed Under: copyright, innovation, looks like a duck, remote dvr, supreme court, uncertainty
Companies: aereo, cablevision
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a) those on the supreme court bench are technologically out of touch by a long way, and
b)that eventually lobbying and brown envelopes can get even the highest law enforcer on your side!
this is a despicable ruling. everyone knows it, including those who were fighting it! considering that every previous court decision went in Areo's favour, it was either don purposefully to try to break the bank or leaving it to the last deciding option, to make it known that there will never, in the USA, be any way to stop the ages old industries and allow for anything new to compete with that old method. this was an extremely bad result for the USA and i hope those that made the ruling are proud of themselves! (i suppose the increase in the spoils from the job will make it easier to endure though, dont you?)
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Anybody else getting the feeling that...
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blown out of the water
This is what happens when you try and twist the law to fit a meaning; you rip giant holes in it that you're too busy stretching for a goal to notice.
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Re: blown out of the water
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Guess I'll just continue getting my new from RT. They're leading the way through innovation and reaching broad audiences, while American news networks are stagnating.
The rest of the world will probably have live streaming TV over the internet before the USA does. America has long thrown innovation out the window in favor of intellectual property privileges (IPP) and the monopolies those intellectual privileges help build though the use of litigation as a blunt weapon.
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Aero did not break the rules, nor were they doing anything any private citizen could do -- set up an antenna; connect it to a DVR, then connect that DVR to a display device. Aero's business model was to do that for you, and charge you for that service not the content, because the content is/was free.
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Congress in their "wisdom" in 1976 worked out a system for how re-broadcasters and redistributes operate and how they pay for the content they are selling access to. All of Aereo's antenna farm technology can't get around the basic principals that exist in law, passed with majority in the senate, the house, and signed into law by the President of the time.
Aereo would be all good if they just sold you the equipment to take home and do it yourself. Their business model wasn't predicated on making a DVR or an antenna, it was all about delivery... and delivery makes them a defacto cable tv company.
SCOTUS saw through the smoke and wasn't distracted by the mirrors and shiny legal baubles that Aereo tried to use. They saw it for what it was, and told them that they can operate if they operate by the same laws that all other re-broadcasters are held to.
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Content that is delivered for free in the area the antennas are. They are paying for space-shifting of free content. Aereo didn't care if it was free cooking shows, porn marathons or local news, they helped getting that free signal to users in other areas.
Congress in their "wisdom" in 1976 worked out a system
Lobbying is called wisdom now? Also, it's not because something was passed in 1976 and it seemed wise and reasonable at the time that it is now. Not to mention the decision wasn't even based on actual facts and technical details. The decision was based on "it looks like". So if it looks like I'm doing something criminal I should be charged even if it's not?
Aereo would be all good if they just sold you the equipment to take home and do it yourself.
Yeah. "Dear customer, here's your antenna, DVR and 2 thousand kilometers of cables so you can space-shift that content that is broadcasted for free." Sounds awesome.
Their business model wasn't predicated on making a DVR or an antenna, it was all about delivery... and delivery makes them a defacto cable tv company.
It was about the equipment. If they really wanted just delivery they'd set up a single antenna and replicate the same signal to every subscriber. Which would be both smarter and cheaper.
They went through the hassle of setting up individual equipment for every single user and sent that specific, private signal to that single, specific user. Just because the internet is a shared space it does not mean the signal is public or some sort of broadcast. This insanity was seen in Zediva's case.
The saddest part is that the broadcasters themselves couldn't care less with the people that went unserved with this idiocy. If anything, they'll deliver a much worse experience (see online video in general that is provided by the MAFIAA themselves) or simply ignore them.
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How exactly would Aereo do that when the ruling in WPIX, Inc. v. IVI, Inc. states explicitly that "that Internet retransmissions services did not constitute cable systems under section 111" and are therefore not entitled to a compulsory license?
It seems that Aereo had no choice other than shutting down since SCOTUS left them in a no-mans land - they're "too much" like a cable system to be fair use, yet not enough like a cable system to be afforded a section 111 compulsory license.
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You're right, the key is the content. The content is, in fact, free over the air, and anyone could pick it up and re-deliver it.
There is absolutely no reason they should suddenly have to pay for Free Content just because they are delivering it to someone else. And even then, they're not exactly delivering it so much as housing the equipment the consumer uses to receive it.
Arguing that someone should have to pay for free content as soon as they try to sell it means that you are against the selling of public domain movies and books and plays. So you better go try and shut down that local Shakespeare play that's charging for admission.
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Yeah, have fun with that.
If 'not getting sued' was the goal, then no business would ever be created, since there's always the threat that some parasitic company that creates nothing but legal fees will come knocking with a 'Pay us X now, or twice that in court defending yourself' shakedown threat as soon as they think you have enough money to be worth the effort.
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Cord cutting
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– What is the difference between a duck?
– Does the duck looks like a duck?
– Hum... Yes.
– There is no difference, then!
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.
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In essence, this means that the Justices act as persuasive litigators rather than as objective judges. This is very unsettling to me.
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Intereting
Brief of 36 Intellectual Property and Copyright Law Professors as Amicus Curiae, ABC v. Aereo, No. 13-461 (Supreme Court) (with David Post)
I don't doubt for a second that he thinks that the cablevision ruling is dead. Yet, he is likely very wrong, for a whole bunch of different reasons.
Most importantly, Cablevision is paying the appropriate fees as a rebroadcaster. The content is not obtained without license. Aereo likely would have won if they were in fact paying for use of the copyright material as per the 1976 law in regard to cable distributors. Aereo would very likely be able to be back in business pretty much directly if they did so.
So Cablevision isn't really at risk here. Aereo lost because they were acting as a defacto cable company while failing to meet the obligations of same. It doesn't do anything to change the legality of DVRs (even remote DVRs).
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Re: Intereting
Time will tell. I'm rooting for the MAFIAA in this case. I hope they stab the US in the feet and are held accountable when it results in actual billions lost. Of course I would prefer the US citizens to be able to put a stop in this madness before it reaches such damaging levels but the Government has long stopped caring about them.
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One thing that is clear is this: At some point, someone will have to come along and start putting fiber into every home in the big marketplaces and start to offer enough bandwidth for IPtv and other services to be delivered normally. The csot will be high, but there is certainly some potential here for a third party company to put in the fiber and offer connectivity services back to the current ISPs, phone companies, and so on. There is certainly the potential for a disruptive business model at some point in the future.
The suggestions of "actual billions lost" is pretty laughable, especially here on Techdirt. If there is no way to determine actual losses from piracy (which is sort of directly visible) it's ever so much harder to determine what the beating of SCOTUS butterfly wings will do to in the future (or would have done in the past). Generally it's better to stick to one side of an argument, right?
Oh, and if the MAFIAA (as you call them ) go away, they will be replaced by another similar group with similar goals. it's sort of a natural process.
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And unless something drastically changes, that someone is probably going to be the cable company, which will mean that in the end we will never be rid of the problem.
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There is plenty potential for disruption right now. Potential that does not become reality. Because Intellectual Property.
If there is no way to determine actual losses from piracy (which is sort of directly visible) it's ever so much harder to determine what the beating of SCOTUS butterfly wings will do to in the future (or would have done in the past).
Actually, we've seen with the vhs. Had the MAFIAA won they'd have killed a source of income bigger than ther theaters they were trying to protect. Piracy on the other hand exists since always. Valenti once complained about some Boston Strangler capabilities of blank media and stuff. While I will agree that we can't really quantify those supposed losses caused by piracy we can do it for the vhs part. How much did the MAFIAA earn from vhs, dvds and the likes?
Oh, and if the MAFIAA (as you call them ) go away, they will be replaced by another similar group with similar goals. it's sort of a natural process.
I don't think you know what these goals are. I'm betting you are thinking about "the artists" or something noble. But we know this isn't true. If they are replaced by entities that actually care about the artists then I'm all for it.
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A few points...
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I'm still goin to stream! WRH
waaa...
I want to hear it when I am walking round wtf can I say?
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I hope this blows up in their faces BIG TIME
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