Judge To Aereo: Hey, Didn't The Supreme Court Make It Clear That You Guys Are Dead?

from the not-looking-good dept

Thu, Oct 16th 2014 11:37am — Mike Masnick

When the Supreme Court ruling in the Aereo case came out, we noted that beyond the bizarre "looks like a duck" test that the Supreme Court made up on the spot, it also appeared to leave open the possibility that Aereo could survive if it simply added a mere delay to its streaming. That's because a key part of the "looks like a duck" test to make Aereo's service a "public performance" was that the shows were streamed "contemporaneously." As Justice Scalia pointed out in his dissent, without any further clarification in the majority ruling, it certainly sounds like Aereo could just function as a remote DVR and be fine.

Back in the district court this week, however, the same judge who had originally ruled in Aereo's favor, now seems to believe that the Supreme Court's decision completely wiped out Aereo's chances altogether. This is the problem with these kinds of Supreme Court rulings, where they rule with a focus on one particular aspect (in this case "contemporaneous" viewing) and lower courts interpret it to mean all of Aereo was ruled illegal. This same sort of thing happened with the Grokster case, in which the Supreme Court ruled that Grokster was guilty because of its related actions that "induced" infringement, and the RIAA/MPAA and others simply assumed that the court said all file sharing is illegal.

In this case, Aereo went before Judge Alison Nathan to present it with a few different arguments over how the company could stay in business -- either by paying licenses as a cable operator or by time shifting, etc. -- and the judge didn't seem to think any option was available to the company. As the Hollywood Reporter notes, her response was:

"Just as a matter of finality, how many bites at the apple does one get?"

I would think that the answer is as many bites as is legal, no? All of the proposed alternatives by Aereo are clearly in direct response to the Supreme Court's specific "looks like a duck" ruling. Aereo isn't trying to challenge that, it's looking to work within the rules the Court established. Yet, once again, we see people taking Aereo's efforts at complying with the specific law as laid out by the courts, and interpreting it as somehow circumventing the law.

Either way, Aereo has the stigma of "lost at the Supreme Court" attached to it, and it appears that any attempted solution to actually comply with the Supreme Court's ruling will be seen as not being allowed because it's merely trying to get "another bite at the apple."

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Filed Under: cable, contemporaneous, copyright, looks like a duck, remote dvr, streaming, supreme court
Companies: aereo

123 Comments

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paulo martins, 16 Oct 2014 @ 11:41am

the ducks are flying "south"

salutations

paulo
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Anonymous Coward, 16 Oct 2014 @ 11:45am

I tend to agree with the judge. Aereo is trying to pull a rabbit out of its hat by coming up with new ways to remain in business. If they had paid the content owners and the broadcasters for the content in the first place, they wouldn't be in this position anyway.

Instead, they gambled on the U.S. Supreme Court and they lost and they're trying to use the Supreme Court decision to find a new strategy to keep broadcasting that content.
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- Anonymous Coward, 16 Oct 2014 @ 11:48am
  
  Re:
  Indeed. So why aren't the broadcasters permitting Aereo to obtain a standard rebroadcast license?
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- Anonymous Coward, 16 Oct 2014 @ 11:49am
  
  Re:
  Instead, they gambled on the U.S. Supreme Court and they lost and they're trying to use the Supreme Court decision to find a new strategy to keep broadcasting that content.
  
  Interesting...so when they actually follow the Supreme Court guidelines, they're still wrong.
  
  That "justice" thing sure sounds like a load of horse shit to me.
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  - antidirt (profile), 16 Oct 2014 @ 11:52am
    
    Re: Re:
    Interesting...so when they actually follow the Supreme Court guidelines, they're still wrong.
    
    Can you cite the Court's "guidelines" so that we can look at them?
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    - Anonymous Coward, 16 Oct 2014 @ 11:59am
      
      Re: Re: Re:
      http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf
      
      Have at it!
      
      We anxiously await your response.
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      - This comment has been flagged by the community. Click here to show it
        
        antidirt (profile), 16 Oct 2014 @ 12:03pm
        
        Re: Re: Re: Re:
        Haha. I've read it several times. I'm waiting for you to produce the "guidelines" you mentioned above.
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        CK20XX (profile), 16 Oct 2014 @ 12:22pm
        
        Re: Re: Re: Re: Re:
        Sheesh, you always do this and you're the one who always ends up looking disingenuous for it. Don't make wild accusations if you aren't prepared to do the work to back them up. You better get to writing a point-by-point analysis of that link's contents if you want anyone to take your seriously.
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        antidirt (profile), 16 Oct 2014 @ 12:49pm
        
        Re: Re: Re: Re: Re: Re:
        Sheesh, you always do this and you're the one who always ends up looking disingenuous for it. Don't make wild accusations if you aren't prepared to do the work to back them up. You better get to writing a point-by-point analysis of that link's contents if you want anyone to take your seriously.
        
        How is it disingenuous to ask this person to cite the specific guidelines he's mentioned? I am prepared to back up my arguments. I'm seeing if this person can explain his argument first.
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        CK20XX (profile), 16 Oct 2014 @ 2:50pm
        
        Re: Re: Re: Re: Re: Re: Re:
        You're basically asking to be spoonfed information that you should be able to scrounge up yourself like an adult. You aren't even actively engaging in discussion; you're basically just claiming that you are right until someone else proves otherwise. If you were really interested in conversation, you'd try to engage the other party by, say, politely asking for clarifications, like where in the document you can find what you missed before. Why should anyone bother talking with you when it's clear you're more interested in feeling superior than discussing topics?
        [ link to this | view in chronology ]
        
        This comment has been flagged by the community. Click here to show it
        
        antidirt (profile), 16 Oct 2014 @ 3:30pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        You're basically asking to be spoonfed information that you should be able to scrounge up yourself like an adult. You aren't even actively engaging in discussion; you're basically just claiming that you are right until someone else proves otherwise.
        
        He claims the opinion contains guidelines. I'm asking what those guidelines are, specifically. And I am "actively engaging in discussion." See below, and give me a break.
        [ link to this | view in chronology ]
        
        CK20XX (profile), 16 Oct 2014 @ 3:47pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        You don't seriously expect anyone to believe that given your attitude and all, do you?
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        antidirt (profile), 16 Oct 2014 @ 3:49pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        You don't seriously expect anyone to believe that given your attitude and all, do you?
        
        I've having a productive conversation with several other people. You should join us.
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        Anonymous Coward, 16 Oct 2014 @ 6:15pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Whined the chicken boy.
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        Anonymous Coward, 16 Oct 2014 @ 12:58pm
        
        Re: Re: Re: Re: Re:
        The decision IS the guideline!
        
        Jackass.
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        antidirt (profile), 16 Oct 2014 @ 1:20pm
        
        Re: Re: Re: Re: Re: Re:
        The decision IS the guideline!
        
        Jackass.
        
        I'm looking for the specific language in the opinion that he's referring to. I don't think there is any such language, which is my point. If he can't produce that language he's referring to, then that backs up my point.
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        antidirt's little buddy, 16 Oct 2014 @ 2:04pm
        
        Re: Re: Re: Re: Re: Re: Re:
        I'm looking for the specific language in the opinion that he's referring to.
        
        That's right, there's not a bit of language in that ruling! So take that, you dirty pirates!
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        John Fenderson (profile), 16 Oct 2014 @ 1:08pm
        
        Re: Re: Re: Re: Re:
        Presumably, the Supreme Court was ruling that Aereo was violating specific laws. Is that not the case? If it is, then the "guidelines" are: stop violating those laws, which is what Aereo appears to be trying to do.
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    - Anonymous Coward, 16 Oct 2014 @ 11:59am
      
      Re: Re: Re:
      Can you cite the Court's "guidelines" so that we can look at them?
      
      http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf
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    - AJ, 16 Oct 2014 @ 12:03pm
      
      Re: Re: Re:
      the above article;
      "Yet, once again, we see people taking Aereo's efforts at complying with the specific law as laid out by the courts, and interpreting it as somehow circumventing the law. "
      
      It appears to me that AC is implying that they are trying to adhere to the "specific law as laid out by the courts", but can't quite figure out what that is or is being told that they are "still wrong".
      
      Based on the story above, I can easily see how he can think that.
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- JM, 16 Oct 2014 @ 11:51am
  
  Yes, how horrible
  Yes, how horrible of Aereo to try and figure out how to comply with the SCOTUS ruling. It's like that time that SCOTUS said that the entertainment industry had to deal with the fact that the VCR was legal and yet the entertainment industry had the gall to stay in business and figure out how to profit in the the light of that decision.
  
  It's really just beyond the pale.
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- Anonymous Coward, 16 Oct 2014 @ 11:52am
  
  Re:
  Yeah, how dare they try to comply with the new legal ruling.
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  - This comment has been flagged by the community. Click here to show it
    
    antidirt (profile), 16 Oct 2014 @ 11:59am
    
    Re: Re:
    Yeah, how dare they try to comply with the new legal ruling.
    
    It's not about complying with the ruling. The ruling said nothing about whether Aereo is a cable system under Section 111, and it said nothing about the delayed transmissions. There's nothing in the opinion about these two issues to comply with. Keep in mind that we're just getting Mike's exaggerated, and unsupported, FUD. Journalism!
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    - Anonymous Coward, 16 Oct 2014 @ 12:03pm
      
      Re: Re: Re:
      You didn't even read the comment I was replying to.
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    - JM, 16 Oct 2014 @ 12:07pm
      
      From the ruling
      Here ya go!
      
      "The text of the Clause effectuates Congress’ intent. Under the Clause, an entity may transmit a performance through multiple transmissions, where the performance is of the same work. Thus when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it “transmit[s] . . . a performance” to them, irrespective of the number of discrete communications it makes and irrespective of whether it transmits using a single copy of the work or, as Aereo does, using an individual personal copy for each viewer.
      
      "Moreover, the subscribers to whom Aereo transmits constitute “the public” under the Act. This is because Aereo communicates the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other."
      
      And much further down:
      
      "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. See Brief for Respondent 31 (“[I]f a distributor . . . sells [multiple copies of a digital video disc] by mail to consumers, . . . [its] distribution of the DVDs merely makes it possible for the recipients to perform the work themselves—it is not a ‘device or process’ by which the distributor publicly performs the work” (emphasis in original))."
      
      You can always just 'Ctrl-F' for "contemporaneous" in the ruling and take it from there.
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      - antidirt (profile), 16 Oct 2014 @ 12:13pm
        
        Re: From the ruling
        Note that the contemporaneity is with respect to the retransmission that reaches the end-user, not with the originating broadcast that is being retransmitted. Distributing a DVD is not a performance because there's no contemporaneous perceptibility.
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        JM, 16 Oct 2014 @ 12:16pm
        
        Re: Re: From the ruling
        So please explain how -- if SCOTUS's issue was surrounding contemporaneous retransmission -- changing the system to prevent contemporaneous retransmission doesn't bring Aereo into compliance.
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        antidirt (profile), 16 Oct 2014 @ 12:29pm
        
        Re: Re: Re: From the ruling
        So please explain how -- if SCOTUS's issue was surrounding contemporaneous retransmission -- changing the system to prevent contemporaneous retransmission doesn't bring Aereo into compliance.
        
        The issue before the Court was the live transmissions. The delayed transmissions were not. However, the Court's analysis of the live transmissions is broad enough that it can be applied to the delayed transmissions. You quoted passages that show just that.
        
        For example:
        Under the Clause, an entity may transmit a performance through multiple transmissions, where the performance is of the same work. Thus when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it “transmit[s] . . . a performance” to them, irrespective of the number of discrete communications it makes and irrespective of whether it transmits using a single copy of the work or, as Aereo does, using an individual personal copy for each viewer.
        
        Moreover, the subscribers to whom Aereo transmits constitute “the public” under the Act. This is because Aereo communicates the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other."
        The Court says that it doesn't matter how many copies are used. Whether each customer has his own copy, or whether one copy is used for multiple customers, it's the same result. What matters is that the same *work* is being transmitted. And what makes it public is that the work is being transmitted to several people who are unrelated. The Court is talking about the live transmissions here, but the same would apply to the delayed transmissions since the Court's analysis is of Section 101 generally.
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        JM, 16 Oct 2014 @ 12:41pm
        
        Bait-and-switch
        There's a lot of text there which basically says, "SCOTUS didn't explicitly address this, but in my opinion they wanted it to apply to this, too."
        
        First off, you flat-out admit that non-contemporaneous (delayed) transmissions were not covered by this ruling, but I'd go further than that. THE PLAIN TEXT of the opinion hangs its hat on the fact that Aereo's transmissions are (a) contemporaneous, and (b) to a collection of non-related people.
        
        Second, the court even explicitly acknowledges that non-contemporaneous distribution is *not* a performance. "For another, an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work." Ergo, no "contemporaneously perceptible images" means no performance, which means it falls outside the scope of the ruling.
        
        Finally, I didn't bring up -- nor does Aereo bring up -- the number of copies, so your whole final paragraph is a non sequitur.
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        antidirt (profile), 16 Oct 2014 @ 12:46pm
        
        Re: Bait-and-switch
        First off, you flat-out admit that non-contemporaneous (delayed) transmissions were not covered by this ruling, but I'd go further than that. THE PLAIN TEXT of the opinion hangs its hat on the fact that Aereo's transmissions are (a) contemporaneous, and (b) to a collection of non-related people.
        
        You appear to be confused by the contemporaneous thing. What's makes them performances is that the transmissions can be viewed contemporaneously as they are received. This is in contradistinction to a download, which is downloaded and then perceived later. It's *not* about the transmission from Aereo being contemporaneous with the original broadcast. Further evidence of this is the Court's statement about transmissions being received at "different times." And as far as the unrelated people goes, whether the transmissions are live or delayed, the same underlying work is being transmitted to unrelated people--thus making the performances public.
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        JM, 16 Oct 2014 @ 12:54pm
        
        Re: Re: Bait-and-switch
        I'm confused or you're backtracking out of a corner you painted yourself into?
        
        I completely disagree that that's what the court meant by "contemporaneous" given how often it references the video *retransmitting* when the user selects it.
        
        So under your interpretation of the court's opinion -- in which a company can take a copyrighted work, store it somewhere on their end (since you argue "contemporaneous" ONLY means "not a download" and not "a contemporaneous retransmission") and display that to the user, and the user views the video as it streams to them -- how is YouTube not prima facie illegal?
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        antidirt (profile), 16 Oct 2014 @ 1:10pm
        
        Re: Re: Re: Bait-and-switch
        I'm confused or you're backtracking out of a corner you painted yourself into?
        
        I completely disagree that that's what the court meant by "contemporaneous" given how often it references the video *retransmitting* when the user selects it.
        
        So under your interpretation of the court's opinion -- in which a company can take a copyrighted work, store it somewhere on their end (since you argue "contemporaneous" ONLY means "not a download" and not "a contemporaneous retransmission") and display that to the user, and the user views the video as it streams to them -- how is YouTube not prima facie illegal?
        
        I've not painted myself into a corner. I've given this a lot of thought. Maybe I'm not explaining it well.
        
        You quoted this passage:
        For another, an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work. See Brief for Respondent 31 (“[I]f a distributor . . . sells [multiple copies of a digital video disc] by mail to consumers, . . . [its] distribution of the DVDs merely makes it possible for the recipients to perform the work themselves—it is not a ‘device or process’ by which the distributor publicly performs the work” (emphasis in original)).
        Sending a file that can be perceived contemporaneously is what makes makes that transmission a performance. If the transmission is for downloading, and not streaming, then it's not a performance. The Court is getting this from the Second Circuit. I can dig up that case law if you like.
        
        As far as YouTube goes, YouTube *is* publicly performing. It has licenses to publicly perform, from copyright owners and from uploaders. When you upload something to YouTube, you give it a license to publicly perform. But more importantly, YouTube is protected by the DMCA under Section 512(c) for its user-generated content. So even if it doesn't have a license for some content, as long as it doesn't know that content to be infringing, the DMCA protects it. I'm simplifying here, but I hope that makes sense.
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        JM, 16 Oct 2014 @ 6:34pm
        
        Ah okay
        I get it now.
        
        So cloud DVRs are illegal now under this logic.
        
        Except for the part where SCOTUS explicitly said they're not outlawing cloud DVRs, at least not here:
        
        "We agree with the Solicitor General that “[q]uestions involving cloud computing, [remote storage] DVRs, and other novel issues not before the Court, as to which ‘Congress has not plainly marked [the] course,’ should await a case in which they are squarely presented.”"
        
        So on one hand, you're arguing that the *sole* distinction that SCOTUS created between "legal" and "not legal" has to do with *streaming* a video file instead of requiring the user to download the entire file before viewing. Yet SCOTUS explicitly rejected that they were ruling on the legality of streaming recorded content from a cloud DVR -- a system by which a third party records cable or broadcast content at the direction of the user and *streams* that content back to the user as a later date.
        
        So where's the boundary here? If I get a gigabit connection and download a reasonably compressed video in 3 or 4 seconds then is that "not contemporaneous"? If I *could* download the video in 3 or 4 seconds but don't because I want to save space on a mobile device does that put me afoul of this ruling? Or by asking these questions am I simply -- in the court's eyes -- violating the law because I'm clearly attempting to circumvent it?
        
        SCOTUS said that they didn't outlaw cloud DVRs and nothing in this ruling should be construed to do so at this time. They say that downloading (i.e., streaming to a 100% buffer) is okay, but streaming is not. They say that it's "the public" if it's more than "a substantial number of people outside of a family and its social circle" but provides not definition of "social circle" or "substantial".
        
        It's almost as if this is a vague ruling that will lead to increased confusion and litigation in the marketplace and discourage new entrants from exploring this marketplace because no one is certain about what just got outlawed, and any attempts to comply with the law are clear signs of intent to violate said law.
        
        Except SCOTUS said that wouldn't happen either.
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        RD, 16 Oct 2014 @ 2:48pm
        
        Re: Re: Bait-and-switch
        "You appear to be confused by the contemporaneous thing."
        
        He (and we) may, indeed, be confused on that issue, but *you*, most assuredly are NOT the one to bring clarity to this issue. You, a shilltroll(tm) are the absolute LAST person who would bring better understanding of these issues.
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        Anonymous Coward, 16 Oct 2014 @ 6:17pm
        
        Re: Re: Re: Bait-and-switch
        "Shitroll"! The proper term for a combination of shill and troll is "SHITROLL"!
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        Sheogorath (profile), 23 Oct 2014 @ 8:16pm
        
        Re: Re: Bait-and-switch
        So basically, going by your argument, if 100,000 people who each happen to own a copy of the exact same movie decide to watch it at the same time as each other, then that's a public transmission and money is owed to Hollywood. Yeah, makes perfect sense. /s
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    - Gwiz (profile), 16 Oct 2014 @ 12:23pm
      
      Re: Re: Re:
      The ruling said nothing [...] about the delayed transmissions. There's nothing in the opinion about these two issues to comply with.
      
      Justice Scalia's dissent indicated that this exact issue would have to be taken up by the lower court because the majority's decision left it unclear:
      
      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. The volitional conduct rule provides a clear answer to that question: Because Aereo does not select the programs viewed by its users, it does not perform. But it is impossible to say how the issue will come out under the Court’s analysis, since cable companies did not offer remote recording and play back services when Congress amended the Copyright Act in 1976.
      Emphasis mine.
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      - antidirt (profile), 16 Oct 2014 @ 12:35pm
        
        Re: Re: Re: Re:
        Justice Scalia was correct that this is "one of the first questions the lower courts will face." His theory about Aereo not performing because it "does not select the programs viewed by its users," however, is inconsistent with the Court's holding. This is a dissent, and Scalia thought that Aereo didn't perform at all. The Court, on the other hand, disagreed. The Court's opinion is the law. Scalia's dissent is not.
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        Gwiz (profile), 16 Oct 2014 @ 12:53pm
        
        Re: Re: Re: Re: Re:
        Yes, I know that the majority opinion is law. I was pointing out (as did Justice Scalia) that the majority left this part unresolved.
        
        Scalia's opinion was using parts of Cablevision as it's foundation. If the courts end up ruling that Aereo's record function is a public performance wouldn't that suddenly outlaw every remote DVR service out there, including those of the cable companies because it would be considered a second public performance?
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        antidirt (profile), 16 Oct 2014 @ 1:03pm
        
        Re: Re: Re: Re: Re: Re:
        Scalia's opinion was using parts of Cablevision as it's foundation. If the courts end up ruling that Aereo's record function is a public performance wouldn't that suddenly outlaw every remote DVR service out there, including those of the cable companies because it would be considered a second public performance?
        
        Good question. I think that under Aereo, as long as the customer has obtained a legitimate interest in the content, then the performances are not public. For example, if I upload a file to a locker and then stream it back, the performance is private because it occurs after I've obtained a legitimate interest in it. This is the problem for Aereo. Its customers don't have a legitimate interest in the copies on the remote DVR--even for the delayed transmissions.
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        Gwiz (profile), 16 Oct 2014 @ 1:30pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Its customers don't have a legitimate interest in the copies on the remote DVR--even for the delayed transmissions.
        
        I know legally that may be true, but out in the real world that seems completely crazy to me since Aereo is using OTA, free broadcast signals that anyone with an antenna can already receive and to which the rights holders were ALREADY compensated for.
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        antidirt (profile), 16 Oct 2014 @ 2:20pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        I know legally that may be true, but out in the real world that seems completely crazy to me since Aereo is using OTA, free broadcast signals that anyone with an antenna can already receive and to which the rights holders were ALREADY compensated for.
        
        You can receive the broadcasts yourself, but it's different when someone acts as a middleman between you and the broadcasts.
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        art guerrilla (profile), 16 Oct 2014 @ 4:44pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        ...like when i'm in a hotel ?
        ...or at a friends ? ? ?
        
        no, you have been -and are- in spite of your legalistic hairsplitting bullshit, disingenuous in your argumentation and reasoning...
        
        1. to the 'original' (non) point, in which you act purposefully abstruse in repeating 'guidelines' a million times... AS IF you did not get the original posters point, AND, AS IF legal decisions/cases do not IN FACT AND IN DEED promulgate what can without doubt be called 'guidelines' in how people are thenceforth supposed to comport themselves in relation to such legal, um, what's the word i'm searching for ? GUIDELINES...
        how can we not take that for ANYTHING but willful dickishness ? ? ?
        2. as one poster *attempted* to make a larger point about how 90-99% of us DO NOT GIVE A FUCK what the SCOTUS decided per se, ONLY inasmuch as us natives are squished between their toes when the elephants dance...
        the 'legal' aspects are -for the most part- the most UNINTERESTING parts, EXCEPT in that they amply demonstrate the to-the-core hypocrisy and dual (in)justice system we suffer under in Empire...
        what IS (or SHOULD BE, to thinking, empathetic human beans) germane AND interesting, is what are the MORAL arguments... who cares about pinhead law students arguing on how many angels can dance on the head of a fiber optic cable...
        
        Empire must fall,
        the sooner the fall,
        the gentler for all
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        Easily Amused (profile), 16 Oct 2014 @ 1:37pm
        
        Re: Re: Re: Re: Re: Re: Re:
        i'm sorry, but that is just flat bullshit. A performance being public or private has zero to do with whether it was paid for in the first place. Either it is public or private, period. You can then address whether that performance was authorized or not - two distinctly separate issues.
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        antidirt (profile), 16 Oct 2014 @ 2:26pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        i'm sorry, but that is just flat bullshit. A performance being public or private has zero to do with whether it was paid for in the first place. Either it is public or private, period. You can then address whether that performance was authorized or not - two distinctly separate issues.
        
        You may disagree with it, but that's what the Supreme Court said so that's the law. I think it makes sense. What makes a performance private is not just who it's sent to. For example, YouTube sends me a performance that only I can see, yet it's still publicly performing. Why? Because it's sending me content that I don't have an existing legitimate interest in. Contrast this with a storage locker, where I can stream content that I've uploaded. These performances are private because I have a legitimate interest in the content that I uploaded.
        [ link to this | view in chronology ]
        
        Gwiz (profile), 16 Oct 2014 @ 4:54pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        These performances are private because I have a legitimate interest in the content that I uploaded.
        
        Wouldn't one legally have an "existing legitimate interest" in free over-the-air television broadcast signals from the moment they leave the broadcast tower?
        
        That is exactly what I have now with an antenna on my roof. How does that change just because it's routed through a third party?
        [ link to this | view in chronology ]
        
        antidirt (profile), 16 Oct 2014 @ 6:00pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Wouldn't one legally have an "existing legitimate interest" in free over-the-air television broadcast signals from the moment they leave the broadcast tower?
        
        You have an interest in it once it's received, not when it's sent.
        
        That is exactly what I have now with an antenna on my roof. How does that change just because it's routed through a third party?
        
        Because the point of the definition in Section 101 is to make it so that third parties that act as intermediaries must obtain a license. Cable systems do this, and they have licenses.
        [ link to this | view in chronology ]
        
        CrushU, 21 Oct 2014 @ 1:13pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        You have an interest in it once it's received, not when it's sent.
        
        But I received the video from the storage locker and YouTube, yet one I don't have an interest in?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 16 Oct 2014 @ 12:57pm
        
        Re: Re: Re: Re: Re:
        "Justice Scalia was correct".
        
        We can extrapolate any sentence starting with these 4 words to present a specious argument unworthy of reading.
        
        (Exact replica of the treatment you reserve Aereo). How much money are you paid ? I know the salary for paid trolls by the dark side was revealed to be kinda low from some Snowden/leaks documents but surely you can go watch the latest Apocalypse themed movies Hollywood pushes down everyone's throat increasingly so the mass psychosis Obama Friend Chicken company can keep everyone in fear 24/7. At least during the Bush era movies were all about America winning at everything by a thread, mostly because it's ideas were better than others at a philosophical level. You can't just go out and enjoy life while Putin is giving interviews in Serbia and European countries that don't detest Russia becaue NATO told them to is talking about how not many more affronts to Russia will have submarines and ICBM's on high alert very soon. You got entertainment that's unbelievably shitty about how it's the apocalypse at the movies, use your pay to ignore the reality they want you to ignore while they're making it a self-fulfilling prophecy (but without shitty real life graphics, no CGI's, sorry) that we'll nuke each other before 2034.
        [ link to this | view in chronology ]
        
        antidirt (profile), 16 Oct 2014 @ 1:04pm
        
        Re: Re: Re: Re: Re: Re:
        How much money are you paid ?
        
        Paid to post on Techdirt? LOL!
        [ link to this | view in chronology ]
        
        art guerrilla (profile), 16 Oct 2014 @ 4:51pm
        
        Re: Re: Re: Re: Re: Re: Re:
        no, paid to be a gummint stooge...
        
        *someone* has to be the POS traitors they buy off, but i don't think you are one...
        
        no, i think you are a twue beweiver, and an obvious high-RWA...
        which is both more likely, and less desirable...
        
        Empire must fall,
        the sooner the fall,
        the gentler for all
        [ link to this | view in chronology ]
        
        antidirt (profile), 16 Oct 2014 @ 5:52pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        no, paid to be a gummint stooge...
        
        *someone* has to be the POS traitors they buy off, but i don't think you are one...
        
        no, i think you are a twue beweiver, and an obvious high-RWA...
        which is both more likely, and less desirable...
        
        Empire must fall,
        the sooner the fall,
        the gentler for all
        
        You are weird dude. I am a "twue beweiver," assuming that means I believe truly what I say.
        [ link to this | view in chronology ]
    - Anonymous Coward, 16 Oct 2014 @ 12:27pm
      
      Re: Re: Re:
      You are correct, they did not use the words "delayed transmissions", and regarding your above comment, they did not use the word "guideline".
      
      They specified what was not allowed, so Aereo is using that as a "guideline" to do transmissions that are not "contemporaneous", so we call those transmissions "delayed".
      
      Given how basic that is to understand, your failure can best be explained the famous Upton Sinclair quote.
      [ link to this | view in chronology ]
      - antidirt (profile), 16 Oct 2014 @ 12:32pm
        
        Re: Re: Re: Re:
        You are correct, they did not use the words "delayed transmissions", and regarding your above comment, they did not use the word "guideline".
        
        They specified what was not allowed, so Aereo is using that as a "guideline" to do transmissions that are not "contemporaneous", so we call those transmissions "delayed".
        
        Given how basic that is to understand, your failure can best be explained the famous Upton Sinclair quote.
        
        I think you're making the same mistake as Mike as to what "contemporaneous" means. It's not about Aereo retransmitting broadcasts at the same time the broadcasts are originally sent. The Court is saying that the retransmissions are performances because they can be perceived at the same time as they are sent.
        [ link to this | view in chronology ]
        
        AJ, 16 Oct 2014 @ 1:37pm
        
        Re: Re: Re: Re: Re:
        You sir, are argumentative as hell... but you admit when you are wrong, and you've got quite a few people picking apart a Supreme Court decision who may have not normally done so. Good for you.
        [ link to this | view in chronology ]
        
        AJ, 16 Oct 2014 @ 1:41pm
        
        Re: Re: Re: Re: Re: Re:
        Whoops.. my post appeared in the wrong spot.. reposted in the correct spot.
        [ link to this | view in chronology ]
        
        antidirt (profile), 16 Oct 2014 @ 2:27pm
        
        Re: Re: Re: Re: Re: Re:
        You sir, are argumentative as hell... but you admit when you are wrong, and you've got quite a few people picking apart a Supreme Court decision who may have not normally done so. Good for you.
        
        Law-types tend to like arguments. Thanks for the comment. :)
        [ link to this | view in chronology ]
        
        Anonymous Coward, 22 Oct 2014 @ 1:05am
        
        Re: Re: Re: Re: Re:
        I think you are making it overly complicated. In no way would the average person ever consider 'contemporaneous' to mean anything other than 'simultaneous.' You are describing streaming, which we already know is not illegal. Under your definition, remote DVRs would be illegal, and they aren't.
        [ link to this | view in chronology ]
    - ChurchHatesTucker (profile), 16 Oct 2014 @ 12:36pm
      
      Re: Re: Re:
      It's not about complying with the ruling
      
      It's not?
      [ link to this | view in chronology ]
    - AJ, 16 Oct 2014 @ 1:17pm
      
      Re: Re: Re:
      "and it said nothing about the delayed transmissions."
      
      IMO, it does indeed say "something" about delayed transmissions... it talks about receiving the transmission at different times, which I would equate to being "delayed"..
      
      "The Transmit Clause must permit this interpretation,
      for it provides that one may transmit a performance to the
      public “whether the members of the public capable of 14 AMERICAN BROADCASTING COS. v. AEREO, INC.
      
      Opinion of the Court
      receiving the performance . . . receive it . . . at the same
      time or at different times."
      [ link to this | view in chronology ]
      - antidirt (profile), 16 Oct 2014 @ 1:24pm
        
        Re: Re: Re: Re:
        IMO, it does indeed say "something" about delayed transmissions... it talks about receiving the transmission at different times, which I would equate to being "delayed"..
        
        You're correct. I was careless there. What I mean is that the delayed transmissions weren't before the Court, so it didn't address them. However, it did address the live transmissions, and some of that language can be applied to the delayed transmissions. As you mention, the Court did talk about transmissions occurring at "different times," and this certainly can be applied to the delayed transmissions.
        [ link to this | view in chronology ]
    - RD, 16 Oct 2014 @ 2:42pm
      
      Re: Re: Re:
      "Keep in mind that we're just getting Mike's exaggerated, and unsupported, FUD. Journalism!"
      
      Perhaps you should also keep in mind that this site is a
      
      TECH
      
      BLOG
      
      and not a journalism site.
      [ link to this | view in chronology ]
      - antidirt (profile), 16 Oct 2014 @ 2:49pm
        
        Re: Re: Re: Re:
        Perhaps you should also keep in mind that this site is a
        
        TECH
        
        BLOG
        
        and not a journalism site.
        
        So when Mike whines about the journalistic integrity, or perceived lack thereof, of others, it's not fair game to point out his own lack of journalistic integrity? I disagree. Calling it a "tech blog" doesn't change things.
        [ link to this | view in chronology ]
        
        RD, 16 Oct 2014 @ 3:36pm
        
        Re: Re: Re: Re: Re:
        "So when Mike whines about the journalistic integrity, or perceived lack thereof, of others, it's not fair game to point out his own lack of journalistic integrity? I disagree. Calling it a "tech blog" doesn't change things."
        
        And yet, when we point our YOUR lack of journalistic integrity (if it applies to Mike and his OPINION blog, it applies to you and your opinion COMMENTS in the same manner) and report your comments, you freak out about "censorship" and all sorts of nonsense persecution bullshit.
        [ link to this | view in chronology ]
        
        antidirt (profile), 16 Oct 2014 @ 3:46pm
        
        Re: Re: Re: Re: Re: Re:
        And yet, when we point our YOUR lack of journalistic integrity (if it applies to Mike and his OPINION blog, it applies to you and your opinion COMMENTS in the same manner) and report your comments, you freak out about "censorship" and all sorts of nonsense persecution bullshit.
        
        Do you think a person who comments on an article at the New York Times has the same duty of journalistic integrity as the reporter and/or publisher of the article? I don't think that makes any sense.
        [ link to this | view in chronology ]
        
        RD, 16 Oct 2014 @ 5:01pm
        
        Re: Re: Re: Re: Re: Re: Re:
        "Do you think a person who comments on an article at the New York Times has the same duty of journalistic integrity as the reporter and/or publisher of the article? I don't think that makes any sense."
        
        Mike isn't a reporter. This isn't the NY Times (sorry, Mike.) This isn't journalism in the sense you are trying to make it.
        [ link to this | view in chronology ]
        
        This comment has been flagged by the community. Click here to show it
        
        antidirt (profile), 16 Oct 2014 @ 6:01pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Mike isn't a reporter. This isn't the NY Times (sorry, Mike.) This isn't journalism in the sense you are trying to make it.
        
        I think Mike wants to gain the benefits of an actual journalist, but without the trouble of earning them.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 22 Oct 2014 @ 1:09am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        We already all get those benefits. It's the First Amendment that tells us what they are. You keep on as if this is a news site when at best it is the editorials page.
        [ link to this | view in chronology ]
- Anonymous Coward, 16 Oct 2014 @ 11:52am
  
  Re:
  That "new strategy" is "pay the broadcasters like the cable company the Supreme Court said we are." The fact that it took a Supreme Court ruling to decide that they are a cable company should not prevent them from doing that.
  [ link to this | view in chronology ]
- Shufflepants, 16 Oct 2014 @ 11:53am
  
  Re:
  If you haven't been paying attention, they tried to pay the broadcasters, but they couldn't because they couldn't get declared a cable company. Basically what's happening is that various courts are saying, you can't do this without paying because you look like a cable company, but you can pay for it because you're not a cable company. The courts are trying to have it both ways.
  [ link to this | view in chronology ]
  - Just Another Anonymous Troll, 16 Oct 2014 @ 11:59am
    
    Re: Re:
    you can't do this without paying because you look like a cable company, but you can'T pay for it because you're not a cable company. The courts are trying to have it both ways.
    
    Fixed.
    [ link to this | view in chronology ]
- Trevor, 16 Oct 2014 @ 12:37pm
  
  Re:
  To summarize:
  
  Law re broadcasting: If you do X, Y, and Z, you are considered A.
  
  Areo: Does P, Q, and R instead.
  
  Broadcasters: OMG Aero is breaking the law by acting to get around it.
  
  Supreme Court: Agreed. Aero, if the law says you are A if you do X, Y, and Z, you are A, even if you do P, Q, and R instead.
  
  Aero: So, can we do B, C, and D instead?
  
  Lower Court: OMG HOW MANY CHANCES DO YOU GET
  [ link to this | view in chronology ]
Anonymous Coward, 16 Oct 2014 @ 11:51am

Vague law
As long as congress is going to make vague law, and I assume they do that to keep lawyers and judges working, then you just have to keep throwing different business models against the wall to see what sticks.
[ link to this | view in chronology ]
antidirt (profile), 16 Oct 2014 @ 11:51am

When the Supreme Court ruling in the Aereo case came out, we noted that beyond the bizarre "looks like a duck" test that the Supreme Court made up on the spot, it also appeared to leave open the possibility that Aereo could survive if it simply added a mere delay to its streaming. That's because a key part of the "looks like a duck" test to make Aereo's service a "public performance" was that the shows were streamed "contemporaneously."

Can you point to the language in the opinion that makes you think Aereo can escape liability by simply delaying the transmissions? Legal arguments are generally more persuasive when you back them up with primary sources. That said, based on your prior post, I don't think you understand the contemporaneity issue. It's not that the retransmission has to be contemporaneous with the original transmission. What makes it a performance is that the retransmission can be viewed contemporaneously as it's sent. For example, downloading a file from a storage locker is not a performance. Streaming a file from YouTube, on the other hand, is. YouTube sends the file such that it can be viewed contemporaneously. The storage locker does not.

All of the proposed alternatives by Aereo are clearly in direct response to the Supreme Court's specific "looks like a duck" ruling. Aereo isn't trying to challenge that, it's looking to work within the rules the Court established. Yet, once again, we see people taking Aereo's efforts at complying with the specific law as laid out by the courts, and interpreting it as somehow circumventing the law.

And you were just earlier today complaining earlier today about "journalists" exaggerating. The Court did not say that Aereo is a cable system as that term is used in Section 111, so Aereo is not trying "to work within the rules the Court established." Nor did the Court say that the delayed transmissions would be different. If anything, its analysis of the live transmissions indicates that the delayed transmissions are infringing. So your whole point is an exaggerated straw man (as it so often is--journalism!).
[ link to this | view in chronology ]
- Anonymous Coward, 16 Oct 2014 @ 12:03pm
  
  Re:
  If anything, its analysis of the live transmissions indicates that the delayed transmissions are infringing.
  
  You mean like the ones I watch on my cable-company provided DVR?
  [ link to this | view in chronology ]
  - This comment has been flagged by the community. Click here to show it
    
    antidirt (profile), 16 Oct 2014 @ 12:04pm
    
    Re: Re:
    You mean like the ones I watch on my cable-company provided DVR?
    
    Not all delayed transmissions are the same. Does your cable company have a license for the DVR transmissions? Is it a set-top box? You haven't given me enough information.
    [ link to this | view in chronology ]
    - Anonymous Coward, 16 Oct 2014 @ 1:03pm
      
      Re: Re: Re:
      I would assume they do - now, why would that be significant for Aereo, but NOT for the existing monopolies?
      
      If Aereo MUST operate as a cable company, per the Supreme Court decision, or cease to exist, why are they being denied the opportunity to do so?
      [ link to this | view in chronology ]
      - antidirt (profile), 16 Oct 2014 @ 1:16pm
        
        Re: Re: Re: Re:
        If Aereo MUST operate as a cable company, per the Supreme Court decision, or cease to exist, why are they being denied the opportunity to do so?
        
        It has to do with Section 111 and its definition of "cable system." The Second Circuit, where this litigation is happening, decided in the ivi case that "cable system" under Section 111 doesn't include internet retransmissions. Aereo is trying to say that ivi doesn't apply because ivi transmitted everywhere while Aereo only transmits a user's local channels. But I don't think that argument will work as there is other language in ivi that still applies and that works against Aereo's position.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 16 Oct 2014 @ 1:34pm
        
        Re: Re: Re: Re: Re:
        (3) Cable system.— A “cable system” is a facility, located in any State, territory, trust territory, or possession of the United States, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection (d)(1), two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered as one system.
        
        The Second Circuit, where this litigation is happening, decided in the ivi case that "cable system" under Section 111 doesn't include internet retransmissions.
        
        The Anonymous Coward below did the work and posted this per 111 - where exactly does it explicitly NOT say "internet retransmissions?"
        
        Do you see why now that decisions regarding Aereo seem to be nothing but vindictive protection of the cable monopolies?
        [ link to this | view in chronology ]
        
        Gwiz (profile), 16 Oct 2014 @ 1:47pm
        
        Re: Re: Re: Re: Re: Re:
        The Anonymous Coward below did the work and posted this per 111 - where exactly does it explicitly NOT say "internet retransmissions?"
        
        The WPIX, Inc. v. ivi, Inc. ruling in 2011 established that a company broadcasting TV transmissions on the internet was not a "cable system" and therefore copyright infringement.
        
        https://en.wikipedia.org/wiki/WPIX,_Inc._v._ivi,_Inc.
        
        That is why I say that Aereo is Schrödinger's CATV. SCOTUS says they are too much like a cable company, but ivi says they can't be a cable company.
        [ link to this | view in chronology ]
        
        Gwiz (profile), 16 Oct 2014 @ 1:51pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Oof. Techdirt doesn't like that link.
        
        Let's try it this way: Link
        [ link to this | view in chronology ]
        
        antidirt (profile), 16 Oct 2014 @ 2:32pm
        
        Re: Re: Re: Re: Re: Re: Re:
        That is why I say that Aereo is Schrödinger's CATV. SCOTUS says they are too much like a cable company, but ivi says they can't be a cable company.
        
        It's two separate issues. (1) The Court held that Aereo performs because it does what a cable system does, namely, receives and retransmits broadcasts. (2) The broadcasters are saying Aereo isn't a cable system because it doesn't meet the definition in Section 111 (or, more specifically, the Second Circuit's interpretation of 111 in ivi). To borrow Mike's terms, it quacks like a duck, and quacking like a duck means it's performing. But it's not really a duck. The first issue looks at whether it acts like a duck. The second looks at whether it really is a duck. Ducks aren't the only things that quack, so it's not inconsistent to say it quacks yet it's not a duck.
        [ link to this | view in chronology ]
        
        That One Guy (profile), 16 Oct 2014 @ 3:31pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        And this is why the Supreme Court completely screwed up their ruling. If they had flat out stated 'Aereo is a cable company under the law' or 'Aereo is not a cable company under the law', this whole mess could have been cleared up. Aereo and the courts would have had a clear idea just which rules and laws did and did not apply to the company, and they could have gone on from there.
        
        Instead, by only ruling that Aereo acts like a cable company, they put Aereo in the position of having all of the downsides, but none of the upsides, like compulsory licensing, as well as having no clue just which sets of rules/laws they need to follow to be legal.
        
        Honestly the lower court has no-one to blame but the SC, after a ruling that messed up, unless Aereo wants to shut down their business entirely they have to basically try whatever they can think of and see if it sticks, not having any clear guidelines to follow.
        [ link to this | view in chronology ]
        
        antidirt (profile), 16 Oct 2014 @ 3:48pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        And this is why the Supreme Court completely screwed up their ruling. If they had flat out stated 'Aereo is a cable company under the law' or 'Aereo is not a cable company under the law', this whole mess could have been cleared up. Aereo and the courts would have had a clear idea just which rules and laws did and did not apply to the company, and they could have gone on from there.
        
        At the time, Aereo was saying that it's *not* a cable system. I assume it's because cable systems perform, and they were arguing that they don't perform. Section 111 wasn't before the Court because Aereo was not arguing it. That's not the Court's fault. If Aereo wanted the Court to address the 111 issue, it should have argued it.
        [ link to this | view in chronology ]
        
        That One Guy (profile), 16 Oct 2014 @ 4:35pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        No, it's still the court's fault. Aereo didn't believe that they were a cable company, and acted accordingly. The SC ruled that they did act like a cable company, but what they failed to do was state that this meant that Aereo was a cable company under the law.
        
        By only ruling that Aereo was acting like a cable company, they essentially threw the company into legal limbo, where it both is, and is not, a cable company, dependent on personal opinion of any judges or companies bringing legal challenges.
        
        The SC dropped the ball by only going half-way with their ruling, had they given a concise 'Aereo is/is not a cable company under the law' then the mess could have been settled by now(ah who am I kidding, the current broadcasters will never stop until Aereo is driven under, legal or not...), instead their ruling guaranteed continued legal challenges as Aereo and others try and determine just what the company is under the law.
        [ link to this | view in chronology ]
        
        antidirt (profile), 16 Oct 2014 @ 4:43pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        No, it's still the court's fault. Aereo didn't believe that they were a cable company, and acted accordingly. The SC ruled that they did act like a cable company, but what they failed to do was state that this meant that Aereo was a cable company under the law.
        
        But it's two distinct issues. Whether Aereo performs comes under Section 101, while the cable system issue is Section 111. The Court didn't interpret Section 111 because that part of the Act simply wasn't before it. The Court *couldn't* rule on that issue since no one argued it. It's not the Court's fault that it didn't respond to an argument that no one raised. Aereo caused this problem by arguing Section 101 and not Section 111. Blame them for making the bed they're now laying in.
        [ link to this | view in chronology ]
        
        That One Guy (profile), 16 Oct 2014 @ 6:54pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        So many laws with ridiculously similar names...
        
        Thing is though, if I'm understanding it correctly, by ruling that Aereo was making 'public performances', they shifted things so that 111 did apply, even if Aereo didn't bring it up themselves. If what Aereo offered was public performances, and the court as a result is claiming that Aereo is acting like a cable company, then they should have taken it into account and ruled accordingly, even if Aereo didn't bring up an 111 argument themselves.
        
        Aereo didn't bring it up because they didn't believe it applied. By making it so that the part of the law dealing with cable companies did apply to Aereo, the SC itself introduced that factor into the case, and it should have been reflected in the ruling itself.
        [ link to this | view in chronology ]
        
        antidirt (profile), 16 Oct 2014 @ 2:23pm
        
        Re: Re: Re: Re: Re: Re:
        The Anonymous Coward below did the work and posted this per 111 - where exactly does it explicitly NOT say "internet retransmissions?"
        
        That's how the Second Circuit interpreted it in ivi, and Aereo is in the Second Circuit. The district court and any panel of the Second Circuit is bound by it. I agree that the text of Section 111 favors Aereo, on a quick read. I haven't really thought about this issue. I know the Copyright Office agrees with the ivi court's read, but I'm not sure why.
        [ link to this | view in chronology ]
  - Duane, 17 Oct 2014 @ 6:52am
    
    Re: Re:
    Your cable company/you pay fees to the broadcasters so can can DVR their shows.
    [ link to this | view in chronology ]
- Anonymous Coward, 16 Oct 2014 @ 12:06pm
  
  Re:
  tl; dr, assuming it's all garbage-spewing anyway
  [ link to this | view in chronology ]
- Anonymous Coward, 16 Oct 2014 @ 12:24pm
  
  Re:
  . What makes it a performance is that the retransmission can be viewed contemporaneously as it's sent. For example, downloading a file from a storage locker is not a performance. Streaming a file from YouTube, on the other handw, is. YouTube sends the file such that it can be viewed contemporaneously. The storage locker does not.
  
  No. In the example of YouTube, a copy is being made of the material and it doesn't have to be viewed immediately upon transmission. There are also storage lockers that do allow for streaming rather than just downloading. If watching while media is streaming is a performance, then whether a transmission is a performance could depend on how slow a viewer's internet connection buffers the video. That's completely arbitrary and attempting to apply 20th century technological concepts such as tv broadcast performances to 21st century technology.
  
  Should we fund road maintenance projects by charging drivers by how many horseshoes their vehicles have attached?
  [ link to this | view in chronology ]
  - antidirt (profile), 16 Oct 2014 @ 12:56pm
    
    Re: Re:
    No. In the example of YouTube, a copy is being made of the material and it doesn't have to be viewed immediately upon transmission. There are also storage lockers that do allow for streaming rather than just downloading. If watching while media is streaming is a performance, then whether a transmission is a performance could depend on how slow a viewer's internet connection buffers the video. That's completely arbitrary and attempting to apply 20th century technological concepts such as tv broadcast performances to 21st century technology.
    
    Huh? This is a legal distinction. Performances are contemporaneously perceptible. Distributions are not. This is what the Court means here:
    For another, an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work. See Brief for Respondent 31 (“[I]f a distributor . . . sells [multiple copies of a digital video disc] by mail to consumers, . . . [its] distribution of the DVDs merely makes it possible for the recipients to perform the work themselves—it is not a ‘device or process’ by which the distributor publicly performs the work” (emphasis in original)).
    Sending a DVD through the mail is not a performance because there's no contemporaneous perceptibility. Streaming a video from Aereo, on the contrary, is a performance because it can be perceived contemporaneously. I realize that the distinction is not always so clear, such as when there are buffer copies. But, generally, when you download something, it's not a performance, and when you stream something, it is. If a storage locker lets you download and stream something, then it can be both a performance and the distribution.
    [ link to this | view in chronology ]
- Anonymous Coward, 16 Oct 2014 @ 12:44pm
  
  Re:
  Now you're reminding me of the old troll, ootb. When it was pointed out to him that the sole purpose of copyright was "to promote the useful arts and sciences", he insisted that because they did not specifically rule out any other justification, that they really intended much more than they wrote.
  
  Now you are contending that even though the justices made 2 references to contemporaneous, that they really intended for that to cover other situations.
  
  You're obviously far more coherent than ootb, but it seems you suffer from the same inability to reason that comes from entitlement thinking.
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  - antidirt (profile), 16 Oct 2014 @ 12:58pm
    
    Re: Re:
    Now you are contending that even though the justices made 2 references to contemporaneous, that they really intended for that to cover other situations.
    
    I'm pointing out that the discussion of contemporaneity in the Court's opinion is *not* about the retransmission being contemporaneous with the original broadcast. That's kind of a big deal, no? It's how you distinguish a performance from a distribution. Downloading is distribution (and reproduction). Streaming is performance. The difference? Contemporaneous perceptibility. And it's not the Court saying this. Circuit courts have said this as well.
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DavidL, 16 Oct 2014 @ 11:56am

Remember, the copyright laws require you to give media companies money whenever you do anything, no matter what they actually say. Any pesky provisions or rulings that say otherwise are "loopholes," and complying with them really means you're violating the law. You monster.
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Anonymous Coward, 16 Oct 2014 @ 12:13pm

The broadcasters demanded that Aereo obtain a license but Aereo made the argument that they didn't have to since they were rebroadcasting content that was being broadcast over free spectrums. That's like someone recording music being broadcast over the radio and then trying to resell that music claiming that the music was obtained over free airwaves.

Sorry, but that stupid argument does not work.

Now, after Aereo lost at the Supreme Court, they now wanted a license to rebroadcast that content, which the broadcasters turned Aereo down. The broadcasters were right in denying Aereo. They had a chance to obtain a license to rebroadcast that content before Aereo decided to fight the broadcasters and networks in court but Aereo opted not to.

You can't turn back the clock and Aereo has nobody but themselves to blame. Even if Aereo gets reclassified as a cable service, they still have to obtain licenses to rebroadcast that content. Aereo needs to shut up already and roll over and die.
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- PRMan, 16 Oct 2014 @ 12:49pm
  
  Re:
  But WHY doesn't that "stupid argument" work? They were using the VERY SAME LAW that started the cable companies 40 years ago and using it the VERY SAME WAY except on the internet instead of a cable.
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  - Anonymous Coward, 16 Oct 2014 @ 4:01pm
    
    Re: Re:
    ...because the ivi case came along 40 years after the cable companies used the same tricks to form their oligopoly.
    
    It's kind of like hackers who patch the flaw once they've gained entry to your computer system.
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- Anonymous Coward, 16 Oct 2014 @ 1:40pm
  
  Re:
  The broadcasters were right in denying Aereo.
  
  Why?
  
  If getting a license is the right thing to do, AND what the broadcasters wanted in the first place, isn't this nothing more than vindictive manipulation of the courts to protect a monopoly?
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John William Nelson (profile), 16 Oct 2014 @ 12:15pm

Damn lazy judges . . .
I understand many judges have high case lists. Still, lazy judges are the worst. Just read the damn briefs, case law, and statutes.
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Pronounce (profile), 16 Oct 2014 @ 12:15pm

Have You Stopped Beating Your Wife?
Just another example of the old issue of once being assumed to be guilty will be assumed to be guilty by the ignorant.

I hope that none of the commenters here get put in the position where CPS does a home study, but if they do they'll know what it's like to always be assumed to be a child abuser.
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Anonymous Coward, 16 Oct 2014 @ 12:16pm

QLAD vs. letter of the law
The part I don't understand is why Aereo is being treated differently than everyone else. Companies often restructure some aspect of their business to dodge the regulatory environment or penal code or to lower their tax bill. Basically to adhere to the letter of the law while in many cases flagrantly violating the spirit of the law. Virtually every company does this to some extent, and no one in the government --or the courts-- ever seems to raise an eyebrow at the practice. (Except, it seems, when a company draws the ire of Hollywood.)

That's not to say that the "quacks like a duck" rule is necessarily a bad thing. I'm sure not one of us would object to applying QLAD to all the major corporations that strategically offshore their cash flow to reduce or eliminate their tax bill, for instance. The problem is selective (and so far very rare) enforcement of the QLAD theory.

Other than Areo, the only other instance I've ever seen where complying with a law is treated as unlawful evasion is when people break up their bank transfers to stay under the $10,000 reporting limit - which is treated as a crime in itself.
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- antidirt (profile), 16 Oct 2014 @ 12:20pm
  
  Re: QLAD vs. letter of the law
  "QLAD" is not the law. The Court looked at how Aereo did the same thing as a cable system such that it caused the performances to occur under 101. It did not look at whether Aereo is a cable system under 111. It's not inconsistent to say (1) Aereo performs because it does what cable systems do, and (2) Aereo is not a cable system as that term is defined in a different section of the Act.
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- Ninja (profile), 17 Oct 2014 @ 3:19am
  
  Re: QLAD vs. letter of the law
  Except, it seems, when a company draws the ire of Hollywood.
  
  This is about killing an attempt at providing a service people actually want while a complete screwup by the SCOTUS.
  
  Basically the MAFIAA sued to try to bury the service under the weight of a lawsuit and ended up with a ruling that screwed Aereo. Now they are fighting to keep Aereo in the limbo so it won't remain in business ever.
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Digitari, 16 Oct 2014 @ 12:30pm

Just pay me
If we didn't think of the business model first (and you did) then you should pay us anyways. (regardless if it not illegal)

the RIAA/MPAA
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Anonymous Coward, 16 Oct 2014 @ 12:40pm

Hey, I've got a question. The big three broadcast their content for free, right? But on their website, you have to pay to watch the content, or be a cable subscriber, or whatever.
Why not just stream their channels free on their websites 24/7? That would've put Aereo out of business without them having to bribe judges.
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- PRMan, 16 Oct 2014 @ 12:51pm
  
  Re:
  Because CBS wants $5.99 a month instead?
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Anonymous Coward, 16 Oct 2014 @ 12:45pm

It's not inconsistent to say (1) Aereo performs because it does what cable systems do, and (2) Aereo is not a cable system as that term is defined in a different section of the Act.

But it is inconsistent to use a "functional equivalency" standard ("Viewed in terms of
Congress’ regulatory objectives...") for the one part, then to not use the same standard ("as that term is defined") for the other part.
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Anonymous Coward, 16 Oct 2014 @ 12:54pm

Per 111

How are they not a cable system?...

(3) Cable system.— A “cable system” is a facility, located in any State, territory, trust territory, or possession of the United States, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection (d)(1), two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered as one system.
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- Anonymous Coward, 16 Oct 2014 @ 2:05pm
  
  Re:
  Because they don't have to cut their name down to 3 letter acronym.
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Jake, 16 Oct 2014 @ 1:05pm

You know, I'm kind of bothered by the fact that Areo's ultimately using the justification that they've bent over backwards to comply with the letter of the law and to hell with whether or not they've complied with the spirit. That line of reasoning doesn't play well in Peoria when cxompanies use it for not paying their taxes or keeping all their employees just under the minimum hours needed for entitlement to health insurance, you know?

Even though I don't approve of the letter or the spirit of the particular law Aero are trying to loophole their way out of obeying, it still bothers me.
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- Anonymous Coward, 17 Oct 2014 @ 2:02am
  
  Re:
  What pray tell is the spirit of the law? To stay out of the way of the oligarchs?
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Adam, 16 Oct 2014 @ 1:21pm

Why Aereo isn't cable
It seems to me from reading the initial SCOTUS ruling that the only way Aereo could get around the ruling and be considered legal is if they broadcast every one of the channels to every one of their subscribers.
This would take up a lot of bandwidth that I don't think they would be able to afford and the end user would probably not be getting what they want in real time.
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Anonymous Coward, 16 Oct 2014 @ 1:28pm

Aereo is really a piece of work. First, Aereo tried fighting their business model all the way to the U.S. Supreme Court and they lost. So, what did they do? They read the decision by the high court and decided to pull "BAIT and SWITCH" tactics.

Second, the broadcasters demanded that Aereo pay for retransmission fees and Aereo scoffed at the idea of actually paying for the content they wanted to rebroadcast. When they lost at the U.S. Supreme Court, they tried applying for a cable license and then wanted to pay licenses to rebroadcast televised content and the broadcasters refused.

Just what the hell is up with Aereo? The courts have recognized their "BAIT and SWITCH" tactics for what they really are and no amount of cons and scams are going to fool the courts.
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- Anonymous Coward, 16 Oct 2014 @ 1:37pm
  
  Re:
  When they lost at the U.S. Supreme Court, they tried applying for a cable license and then wanted to pay licenses to rebroadcast televised content and the broadcasters refused.
  
  So they can't operate using method X, and they MUST operate per method Y - just like every other duck.
  
  When they try to operate using method Y, they are denied.
  
  Yet you think AEREO is the one pulling the "bait & switch?"
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Anonymous Coward, 16 Oct 2014 @ 2:10pm

This is a clear message that the courts are stacked against the little guy , Big Money buys Big laws .
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Zonker, 16 Oct 2014 @ 2:36pm

If following the letter of the law is illegal in the eyes of the court, and following the court's own interpretation of the letter of the law is illegal, then neither the letter of the law nor the court's interpretation of the law are legally valid. The court rendered the law illegal and the law rendered the court's interpretation illegal. Both cease to be legally relevant and are thus nullified.

The Supreme Court could not allow the district courts ruling here survive on appeal without overruling their own ruling on the same case and I'm sure the district court knows it. How many bites at the apple does the district court get to follow the Supreme Court's instructions and grant Aereo the compulsory license cable companies are supposed to receive under the law now that one-to-one TV antenna rental services are legally equivalent to cable transmissions?

And how does the district court think it will be able to overrule the Supreme Court's ruling in Cablevision and explicit statements in the Aereo case that delayed retransmission of broadcast TV as a remote DVR service is and would have been legal.
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W Klink (profile), 16 Oct 2014 @ 3:17pm

Twisted opinion
To be fair to the judge, the Supreme Court's opinion was so twisted that it's clear to everyone that the Court was tailoring it's decision to wipe Aero out. It doesn't really matter what they do, the Supremes will find a new twist. It's not based on logic or the law, they've already decided...
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makoto saito, 16 Oct 2014 @ 5:09pm

aereo case
Judge Nathan could split the case into two solutions, one is real-time transmission i.e. section 111 that publicly performs and other is time-shift transmission i.e. section 107 that privately performs.

If so, the solutions can be designed to allow consumers to set two legal choices via cloud license server to "provably" retransmit the free OTA broadcast over the internet.
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Anonymous Coward, 16 Oct 2014 @ 9:21pm

"Just as a matter of finality, how many bites at the apple does one get?"

Judge, are you saying that you only take one bite of an apple and throw the rest out?

That seems like a huge waste of apples.
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Anonymous Coward, 16 Oct 2014 @ 10:41pm

There is no Justice. And without Justice there is no "democracy".
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kP (profile), 17 Oct 2014 @ 8:56am

I'm not even sure a duck CAN bite an apple...
:-)
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George Dickerson, 22 Oct 2014 @ 8:17am

public petition
Get up a petition with millions of signatures. I'm up to signing one on your behalf. They only want to stream what you are entitled to as a citizen, Public air waves, but you are a little to far from the source to pick up with your antenna. This is only like a booster antenna for one you might be using. Greed on the part of cable companies is all that is blocking it' not the paid for courts, don't kid yourself into thinking it is anything else.
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