TV Networks Gang Up To Sue Aereo; Do Copyright Rules Change Based On The Length Of A Cable?

from the questions-questions dept

Well, this was no surprise. As plenty of people predicted, the Barry Diller-backed startup Aereo has been sued by the TV networks in two separate lawsuits (one from Fox, Univision and PBS -- when have Fox and PBS ever worked together on anything? -- and one from ABC). If you haven't followed it, Aereo is a system to let people access broadcast over the air television (i.e., no cable/satellite channels -- just yours basics) via their computers, with some additional DVR-features. The way it works (as we explained last year when Aereo went by the name Bamboom) is that Aereo, for a subscription fee, sets up an antenna just for you to capture the over-the-air signals, connects it to a DVR-like device that you can then log into over the internet. Makes some amount of sense, though it's really yet another example of how kludgey companies have to be to provide what should be readily available already.

The TV networks hate, hate, hate this because they've been raking in oodles of cash from carriage fees from the cable and satellite guys. That's how much cable and satellite has to pay to "retransmit" the local broadcast channels, and it's become a huge, multi-billion dollar business that the TV guys have no interest in giving up in any way, shape or form. It's the reason why you probably hear stories on a regular basis about some cable or satellite network will no longer carry a certain broadcast channel... leading to a lot of posturing and such before one side eventually backs down (often after a short blackout period).

If this whole thing sounds familiar, that's because Aereo has a lot of similarities to a variety of other attempts to offer video online. There are three key cases that Aereo clearly resembles in one form or another -- but since the rulings aren't entirely consistent (yay) who knows where things will end up. I will say that, as with previous cases, this one really comes down to whether or not the length of a cable changes the copyright status of a piece of video content. I find that, when you reduce it to that level, the whole legal question automatically becomes a preposterous one. Tragically, however, courts seem to want to contort themselves into a variety of knots to stop things that they don't like. Anyway, the similar stories:

• First up, we've got the ivi case, which may seem like the most similar in terms of offerings, but may actually be the least similar in terms of legal issues. ivi also offered (for a subscription fee) access to over the air broadcast channels via the internet. However, the method and legal arguments were somewhat different. ivi tried to mainly rely on Section 111 of Copyright law, which was what established a compulsory licensing system for cable systems to retransmit network television. Thus, it tried to argue that it was the equivalent of a cable system, and could get by with the compulsory rates.
  
  So far, it hasn't fared well in court. While the products are similar to the end consumer here, the method and legal arguments are pretty different. For what it's worth, the lawsuit against Aereo was filed in the same court as the one against ivi.



• The second case is the Zediva case. This one is actually much closer legally to Aereo, even if the products are somewhat different. Zediva worked by having a bunch of network-enabled DVD players in a data center. If you wanted to "rent a movie" online, you could do so, and a physical DVD would be put into a physical DVD player and streamed to you online. Zediva legally purchased the DVDs and argued that this was really no different than having a DVD player next to the TV. It's just that the cable is much longer. The similarities to Aereo are pretty obvious. Both involve a separate physical device at a central location being assigned to an end-user, and then content streaming from that device.
  
  Unfortunately for Aereo, Zediva has also not fared well in court -- a ruling that does not bode well at all for Aereo. The most troubling part of the Zediva ruling was that watching a DVD in your own private home, even if it was solely being streamed to you direct from a DVD player that only you could access for the duration of the movie, was considered a public performance. This seems like a pretty ridiculous reading of the law to some of us, but if the court in the Aereo case reads the law the same way, Aereo is sunk. The only slight ray of hope here may be that the Zediva case was in the Central District of California, rather than the Southern District of NY where the Aereo case is (and the ivi case was as well).



• The other "ray of hope" comes from the Cablevision ruling, which noted that a hosted DVR device could be legal and non-infringing, though it involved a horribly convoluted legal argument for the court to reach the conclusion it wanted, focusing on the legality of fleeting buffer copies. This is a ruling that the industry would love to kill off if it could. The good news here, beyond the nature of the ruling, is that this ruling came in the 2nd Circuit appeals court, which is precedent setting for the Southern District of NY where the Aereo case is taking place. It's not a direct comparison, but this ruling could conceivably help in at least one key part of the case.

On the whole, I'd say that Aereo's chances of prevailing are pretty slim no matter what. So far, it seems like the courts tend to use more of a "does this feel different enough to break the law" type of approach.. and then work out ways to make the ruling agree with that. However, if they do prevail here, it will set up an interesting split with the Zediva ruling -- though, it won't be that meaningful, because Zediva more or less ran out of money and gave up on its lawsuit before it reached the appeals court level.

However, as I've noted with all of these services, all they really seem to do is highlight how ridiculous copyright law is both in the contortions it forces companies to go through to try to stay within the letter of the law, and the equally ridiculous contortions that the courts then have to go through to move those lines to claim that these things are infringing in some manner. I still really don't see the point of either ivi or Aereo, but I'm troubled that they're not even allowed to exist. The thing is, if this content was just made available online in an easy, open and convenient manner -- as it is over the airwaves -- then there wouldn't be any issue here at all. But it's not, and thus we get these companies that have to do all kinds of acrobatics to try to legally offer a service... only to see them get sued out of existence for daring to try to stay within the letter of the law, rather than just saying "to heck with it" and setting up a site offshore that provides unauthorized streams in the most efficient manner.

Fundamentally, what this comes down to is the simple question of whether or not copyright law is different if the cord between your TV and the device that brings content to your TV is a matter of feet or a matter of miles. It's clearly legal to watch and record over-the-air TV in your own home with your own antenna (or to watch a movie on a DVD player). The only real difference here is that, rather than a cable running a few short feet from your TV to an antenna or a DVD player next to it, the TV is hooked up to the internet, and the "cable" in question is miles long to a data center... where it connects to a nearly identical antenna or DVD player. To me, it makes no sense at all to say that those two scenarios have different legal outcomes. And, indeed, that appears to be the argument that Aereo is making:

Aereo does not believe that the broadcasters’ position has any merit and it very much looks forward to a full and fair airing of the issues.

Consumers are legally entitled to access broadcast television via an antenna and they are entitled to record television content for their personal use. Innovations in technology over time, from digital signals to Digital Video Recorders (“DVRs”), have made access to television easier and better for consumers. Aereo provides technology that enables consumers to use their cloud DVR and their remote antenna to record and watch the broadcast television signal to which they are entitled anywhere they are, whether on a phone, a tablet, a television or a laptop.

Now they just have to convince a court of that.

Filed Under: broadcast tv, cable length, copyright, over the air
Companies: abc, aereo, cablevision, fox, ivi, pbs, univision, zediva

ABC Sports Threatens To Hit Tim Pawlenty With Copyright Infringement Claim Over Miracle On Ice Footage

from the copycats dept

Back in April, we noted that Canadian Prime Minister Stephen Harper had created a commercial that many people noted looked like a copy of a campaign ad for Tim Palwenty, just substituting Canadian scenery for American scenery. In that post, we also noted that Harper had apparently failed to properly license the hockey footage he used as a part of the commercial. Well, now it seems that Pawlenty is copying Harper... in choosing not to license hockey footage. Pickle Monger alerts us to the news that ABC Sports says it's going to send Pawlenty a cease & desist for using footage from the famous "Miracle on Ice" 1980 Olympics match in which the underdog Americans beat the Soviets. ABC says that the footage was not licensed -- especially the use of announcer Al Michaels -- and that they were considering sending a cease & desist. Of course, I'd still argue that this kind of usage should count as fair use, but for the most part, uses like this are not seen as fair use.

Filed Under: commercials, copyright, miracle on ice, politics, tim pawlenty
Companies: abc, disney

More TV Shows Offering Reasons To Buy; Castle's Successful Character-Written Novel

from the creative-business-models dept

We always hear from people that certain types of digital content can't come up with scarce "reasons to buy," and yet we always seem to hear of new and creative ways that it's being done anyway. Back in December we wrote about how the TV sitcom It's Always Sunny in Philadelphia had turned ridiculous on-air products into the real thing and they were selling quite well. Now, PrometheeFeu points out that the popular ABC TV show Castle has come out with a real book supposedly by the lead character in the show, who (in the TV show) is a professional writer. Not only that, but the book itself has hit the NY Times best seller list. Now, it's not entirely clear who wrote the book (when asked, the producers of the show insist that it was the character in the program), but the book has gotten decent reviews and ABC is pitching the book on its website (including free chapter downloads). One assumes that ABC likely gets a cut of the sales as well. It's yet another neat attempt to combine an infinite good with a scarce one to make that scarce one more valuable. I would imagine that the book wouldn't sell nearly as well if it hadn't been tied to such a TV program.

Filed Under: books, business model, castle, cwf, novels, rtb, tv shows
Companies: abc, disney

TV Exec Upset When Daughter Doesn't Want To Bring TV To College

from the your-lot-in-life dept

Just about a year ago, ABC TV exec Anne Sweeney was telling people at CES that they were in the providing good content business, and she wanted to see it delivered however people wanted to watch it, on whatever device they wanted. But, it's a little more difficult to apply that message to her own family, apparently. In the opening to an article about the whole "web vs. TV" debate (as if there really is one) in light of the Comcast/NBC deal, the piece opens with a story about Sweeney forcing her daughter to bring a television to college, despite the younger Sweeney's protests that she had no need for a TV:

"Mom, you don't understand. I don't need it," her 19-year-old responded, saying she could watch whatever she wanted on her computer, at no charge....

"You're going to have a television if I have to nail it to your wall," she told her daughter, according to comments she made at a Reuters event this week. "You have to have one."

Perhaps it's time to recognize that more and more people don't need a TV?

Filed Under: anne sweeney, content, television, web
Companies: abc, disney

Australian ABC Promises To Stay Free; Mocks Murdoch And Paywalls As 'Old Empire' Thinking

from the take-that,-rupert dept

One of the key points we've raised in the past about the futility of newspapers putting up paywalls is that doing so would only open up a huge opportunity for other, smarter journalism organizations to take their market share by remaining free. And, indeed, more and more organizations are starting to point out that's exactly what they would do. Reader Jamie writes in to let us know about a speech by the managing director of ABC in Australia (not the Disney owned ABC in America), Mark Scott, taking on the "old media" thinking around such things as paywalls:

Scott's most virulent words were saved for News Corporation (owner of The Australian) chairman Rupert Murdoch and CEO Europe and Asia, James Murdoch.

He called Rupert Murdoch's recent call for content providers to charge online distributors for content as "a classic play of old empire, of empire in decline. Believing that because you once controlled the world you can continue to do so."

"When you have been so powerful and dominant for so long, it is hard to believe that empire is slipping away," he said.

Scott argued traditional media companies had been out-thought by technology companies in strategy.

And... oh yeah, if Murdoch goes paywall, Scott promises to do the opposite:

He reiterated the ABC would continue to provide free online news content and said the ABC must remain audience-focused

Not just that, but he seems to be recognizing that the way people interact with news has changed, and they want to be much more involved:

... he noted the only media organisations to survive will be those that: know and accept that all the rules have changed; are endlessly inquisitive about the new; empower their audiences to contribute, to create and share media....

Nice to see some news business execs who seem to recognize what's happening.

Filed Under: australia, journalism, mark scott, media, paywalls, rupert murdoch
Companies: abc, news corp.

Who Says Content And Advertising Can't Mix?

from the yet-another-example dept

We've been talking about the fact that content is advertising and advertising is content for a while now, and one of our regular readers, Bill, sent in a neat example of this at work. It's the latest video from the Eepy Bird guys (if you're reading this in a feed reader, you may need to click through to see this): The Eepy Bird guys are, of course, most famous for their Diet Coke + Mentos video which kicked off quite the international phenomenon. One of the less-well-documented aspects was what happened after the video became popular. For a while, neither Coca-Cola nor Mentos was particularly thrilled with the idea of associating themselves with the video. Coca-Cola specifically distanced itself from the phenomenon initially. Mentos took some time, but quickly embraced the phenomenon, agreeing to sponsor future Eepy Bird projects. And, with a little pushing, Coca Cola also came around.

So, now we've got this new video, and it's definitely entertaining. Using hundreds of thousands of Post-It Notes forming paper "slinkies," the video demonstrates that recognition of how advertising and content are becoming one. The video is certainly entertaining and fun to watch -- so it's likely to attract many viewers. However, there's also plenty of advertising built into it as well. First, most obviously, it continues to build up Eepy Bird's reputation for quirky fun video "experiments." But, the video also "debuted" on television on the ABC Family channel as a part of that station's TV show Samurai Girl. So, it was also an advertisement for that show as well as the ABC Family network. On top of that, the video was sponsored by Office Max (who sells Post-It Notes, obviously), but not in a particularly intrusive or annoying manner. And, while it was not overtly sponsored by 3M, you have to imagine that the maker of Post-Its can't be particularly disappointed by the additional publicity. And, oh yeah, the best part is that video also contains a note at the end (not sure if it's an "ad" per se) from... Coca Cola, the very company that had been so hesitant to embrace Eepy Bird.

So, here we have a very entertaining video that doesn't "trick" anyone, isn't intrusive and still helps "advertise" a whole variety of different things without being annoying about it.

Filed Under: ads, advertising is content, content, content is advertising, eepy bird, post-its, samurai girl
Companies: abc, coca cola, mentos, office max

ABC/Disney Memo Shows That Ripping Off Other TV Programs Is Ok... For ABC/Disney

from the next-ride-at-disneyland:-the-double-standard dept

Of course, we all know that in the long history of Disney, the company has made much of its money by taking the content of others and repurposing it in cute animated stories. Yet, when it comes to anyone else doing things with Disney's stories or characters, its lawyers are rather vicious in response. In fact, it's Disney's heavy handed lobbying that has helped extend copyright to ever longer terms, just to avoid Mickey Mouse from entering the public domain. Thus, it probably shouldn't come as a surprise, that Disney continues with this double standard in other parts of its business. Reader Comboman sent in the news that a leaked memo from Disney subsidiary ABC suggests that producers look for TV ideas from foreign shows, where the idea can be used without having to pay a license:

"As I'm sure you're all aware, foreign formats have increased in popularity as the basis for US television development and production. What is often overlooked, or not fully appreciated, are the complexities associated with negotiating format deals, coupled with the fact that often-times what is appealing in the format may be nothing more than a general underlying premise, which, in and of itself, may be no reason to license the underlying property."

In other words, let's see what we can copy. And, yet, if anyone were to do that with a Disney/ABC property, you can bet that the lawyers would be all over it before you could get very far. But, of course, don't be surprised. It's simply the way Disney/ABC does business: abusing intellectual property laws is perfectly fine when done for its own purposes -- but is the destroyer of everything good when done to Disney/ABC.

Filed Under: copying, copyright, television shows
Companies: abc, disney

If You Carry A Blackberry And Are Paid Hourly, Do You Count Checking Your Email As Time Working?

from the does-checking-your-Blackberry-count-as-work dept

We've talked about the question of the work-life balance plenty of times, as people begin to recognize that "life" (such as personal surfing) is showing up in the office and "work" (such as checking your email) is showing up at home. However, that's leading to a few problems with some legacy systems. For example, what does it mean for workers who are paid on an hourly basis, with the potential for overtime? That problem recently came up when ABC News tried to make it clear to new staff writers that they couldn't count time checking their Blackberries as being work hours for overtime purposes. While the two sides settled this issue internally, it does raise plenty of questions for other hourly workers who are still expected to "check-in" from time to time outside of the office. This might not be a huge problem, as many jobs that require a Blackberry tend not to be paid hourly -- but these types of issues are likely to keep showing up as workplaces struggle to deal with changing work and lifestyles.

Filed Under: blackberries, checking email, email, hourly workers, overtime
Companies: abc

ABC Still Excited About DVRs That Disable Fast Forward

from the bad,-bad-ideas dept

A few months ago, we wrote about how ABC was excitedly testing a new DVR technology that would prevent people from fast forwarding through commercials on their DVR. If this seems dumb and destined to fail, that's because it's dumb and destined to fail. You don't compete with things like a fully functional DVR that has features people want by creating a crappy DVR that doesn't have the features people want. That story got plenty of attention -- which should have made its way back to ABC. But, if it did, the company is ignoring it. As reader Joey writes in to let us know, at ABC's recent "upfronts" where it pitches its latest efforts to advertisers, it's still excitedly pushing the idea of the fast-forward-disabled DVR (in the update at 4:34). The NY Times reporter claimed it was "a fancy way to combat DVR use." Except, that it's not. It's a dumb way to combat DVR use because all it will do is anger a bunch of people and get them to go out and buy a DVR that doesn't do that sort of thing.

Filed Under: commercials, dvrs, fast forward
Companies: abc, disney

ABC Tries To Limit How Other Networks Report On Debate; Networks Ignore ABC

from the ah,-copyright dept

About a year ago, there was a push by some to get both the Democrats and the Republicans, along with the various television networks showing any Presidential debates to agree to freely license the content of any debate afterwards for any kind of media coverage. While some agreed to this, others did not. In fact, with last week's Democratic candidate debate, it appears ABC tried to take the issue even further. It demanded that other networks show less than 30 seconds of debate clips the night after the debate. This is quite similar to the restrictions MLB and the NFL have been trying to put on reporters as well. ABC claimed that it needed to do this because it delayed the broadcast of the debate on the west coast until later in the evening. First, people on the west coast aren't stupid. They know the debate already happened. Pretending it didn't isn't going to change much. Second, it seems ridiculous that ABC time-delayed the debate in the first place. But, most importantly, restricting how others can report on a news event seems pretty pointless -- and, indeed, the other networks basically ignored ABC's demands and broadcasted as much as they wanted to of the debates.

Filed Under: content, copyright, debates
Companies: abc