When The Entertainment Industry Takes Down Linking Sites, It Makes It Harder To Take Down Actual Infringing Content

from the is-it-worth-it? dept

We've never really understood the desire to go after middlemen, rather than those actually responsible for things -- but for some reason, many, many people tend to focus on them. We talk about the importance of Section 230 or the DMCA's 512 safe harbors in protecting middlemen from liability over actions of their users. Or we talk about how law enforcement freaks out about illegal activity advertised on Craigslist and Backpage, rather than using those tools to actually track down the law breakers.

And yet... it continues. TorrentFreak has been covering how the latest copyright laws in Spain (which have been updated repeatedly over the past few years at the demands of Hollywood) mean that linking sites -- which, in the past, had been declared perfectly legal -- may now face tremendous liability. As a result of this, a few of those sites have decided to shut down. That's not surprising, and I'm sure that the legacy copyright players are excited about this result, high-fiving each other around the office, saying "job well done." Except, of course, it's not. In another post, where TorrentFreak spoke to the folks behind Wiziwig, a sports linking site that has shut down, there's an aside where it becomes clear that because Wiziwig has shut down, actual streams of sporting events may be more available than in the past:

“What we noticed Thursday [the day the site went down], and that’s what we’ve always been thinking, is that the Premier League has only been focusing on Wiziwig lately to take down streams, like those from [P2P streaming service] Sopcast for example,” Wiziwig told us.

“If we added a Sopcast link for a game in the Premier League, then quickly that link was made inaccessible. On Thursday all Sopcast channels kept working all day, without any been taking down during the early kickoff, 3pm game and late game. Coincidence?”

The idea that the soccer league had been using Wiziwig to find streams and have them taken down at source was confirmed when matches streamed from other sources also remained up.

“Same applied with Veetle links, as when those previously appeared on Wiziwig they were quickly taken down. If we didn’t add them they were working all game long, while people could find them easily in Veetle. That also applied to several other links.”

Now, I'm sure some copyright system defenders will argue that this is an okay tradeoff -- that in taking down the middleman linking site, they also made it harder for people to find those other streams that remain up. But... that's unlikely to be that true. The folks who really want to watch these kinds of things are generally members of communities of folks who are equally interested, and the links to new sources can get passed around quite quickly. So the people who are watching the infringing content still get to do so.

All that's really happened is that the copyright holders who are rushing around trying to take down everything now have made their own job more difficult by going after a tool that helps them find the actual infringement. That's why it's really dumb to focus on the middlemen rather than the actual end users who are streaming the infringing content.

Filed Under: copyright, infringement, linking sites, spain, sports streaming, streaming, takedowns
Companies: wiziwig

Dish/ESPN To Team Up To Finally Unleash Streaming Sports Without Cable

from the touchdown dept

For years, I've begged and pleaded with the powers that be for major American sports to be untethered from cable television and released into the world of real internet streaming options. Then the dominoes finally, albeit extremely slowly, began to drop. Even as some leagues wasted opportunities to expand streaming, like the NHL, other leagues are slowly beginning to let the door creak open. The most recent example was the NBA negotiating their broadcast contracts such that internet streaming was expanded considerably. While the expansion was real, the overall penetration in terms of the gross number of games that would be streamed is still limited. The other notable aspect of the NBA deal was that the streaming expansion was clearly being forced upon broadcasters by the NBA as part of the negotiations, rather than broadcasters themselves embracing streaming.

It looks like the times are a-changing a bit faster than even I would have thought. For what I believe is the first time, major cable sports is coming to internet-only subscribers in a partnership between ESPN and Dish.

Lots of people say they want to ditch cable TV for the Web, but can’t because they want to watch sports — specifically the stuff on ESPN, which has a hammerlock on much of the sports world. Now they will finally get a chance: Dish’s new Web-TV service, which the company is formally announcing today, lets you stream ESPN, over the Web, for $20 a month.

Dish’s “Sling TV”* offering, which the company says will launch “soon,” also comes with 10 other non-ESPN channels, including the Food Network, CNN and the Travel Channel, and the ability to add more networks for additional fees.

A couple of things that you'll hear from the detractors are obvious. First, twenty bucks a month for 11 cable channels added to your ISP bill doesn't sound like the greatest deal money-wise. Add to that that this deal has been done with Dish and not a company like Comcast, AT&T, or the like and it's easy to see this move as ESPN dipping its toe in the streaming waters to see if there be sharks down there. Let me respond to both of those points: neither matters even a little bit.

This is all about trending and the trends are clearly in favor of expanded streaming by all parties that desire to stay in business. If the price point is too high for the number of channels received, it will come down to meet demand, because the demand is the driving force. If this is a Dish-only deal today, it won't be the moment ESPN recognizes the value in offering it in the future. The company will either insist other carriers offer something similar or they'll simply open up their web product directly, which I think would be the better choice for them anyway, because this is ESPN we're talking about and having them stream matters.

Getting ESPN in the streaming game means the modern concept of cable television subscriptions has had its coffin built and is awaiting the final nails. When it comes to reasons for not cutting the cord, professional sports ranks number one, and ESPN is number one in cable pro sports. Re/code is exactly on point as to how far ahead of the game this puts things.

That wasn’t supposed to happen for years, but here we are. It’s not the end of pay TV — the networks that are doing this believe they can sell this stuff on the Web without compromising their existing businesses — but it certainly could be the beginning of the end. At the very least, it’s going to be hard to roll this back.

It's the opening of a floodgate and the waters are saturated with soon-to-be cord cutters. One wonders if Netflix's Reed Hastings had some idea that this was coming when he predicted the death of broadcast TV in 2030, because this sets that outcome in motion as well.

Filed Under: cord cutting, sling tv, sports, streaming
Companies: dish, espn

Irony: Sony Turns To Google, The Company It Was Plotting Against, To Stream The Interview

from the funny-how-that-works dept

To me, the biggest story to come out of the Sony Hack remains how the MPAA and the major studios were conspiring to attack Google by paying for state Attorneys General to drum up silly investigations of the company. Most everyone else in the press seems much more focused on the gossip and, of course, what happens to The Interview, the Seth Rogen/James Franco movie that some think was the reason for the hack in the first place (even if the evidence on that remains questionable). Either way, as you know, Sony briefly shelved the plans to release the movie (which has fairly dreadful reviews from those who have seen it), but then decided to allow a few independent theaters to show it, followed by the announcement this morning that it would stream the movie via YouTube.

There are lots of bizarre story lines related to this -- including, apparently, Apple turning Sony down when approached with a similar deal for iTunes. Or the whole idea of how this might actually show the Hollywood studios the value of releasing movies online at the same time as in theaters (a message many have been trying to send Hollywood for ages, which Hollywood is quite resistant to). And, of course, there's the whole story line about a giant company being bullied by a few stray threats about showing the film in theaters, which almost no one thinks were serious.

Still, the story that is most fascinating to me is tying this whole thing back to that original story, about "Project Goliath" and the plan to conspire to attack Google -- and the fact that when Sony needed to find a place to stream the film, it turned to YouTube, a Google-owned company. Huh. Of course, this fits with the long history of the legacy entertainment industry lashing out and attacking the creators of the innovations that industry most needs. The recording industry attacked radio when it first came on the scene, though it eventually enabled the music industry to grow so big. Hollywood, famously, claimed the VCR was "the Boston Stranger" to the movie industry -- yet four years after that statement was made, home video brought in more revenue for Hollywood than the box office. The RIAA sued one of the first MP3 players, yet digital music is a major, growing source of revenue these days. And, of course, Viacom engaged in a many years-long battled with YouTube.

Maybe, just maybe, one of these days the legacy entertainment players will get the message that innovators and entrepreneurs aren't the enemy. They're the ones providing Hollywood (and music and other industries) with all the tools to better serve the market.

Filed Under: james franco, seth rogen, sony hack, streaming, the interview
Companies: google, sony, sony pictures, youtube

CBS Blames Netflix For Its Own Secrecy Over Streaming Video Numbers

from the I'll-show-you-mine-if-you-show-me-yours dept

After spending the last few years suing the hell out of every and any disruptive TV innovation on the horizon (from Dish's Hopper to Aereo), CBS recently announced the launch of its own "All Access" streaming video service. The service, only available in 14 metro markets, lets users view CBS content the day after it airs on traditional television -- with advertisements included. It's a somewhat shaky value proposition, and when pushed this month to disclose how many subscribers the service has signed up since its October launch, CBS CEO Les Moonves not only refused to get specific, he felt the need to throw a jab at Netflix:

"Moonves would say only that CBS All Access was “ahead of projections,” but acknowledged that could mean as few as 10 subscribers...I've been extremely impressed with the product,” he said, adding that its subscriber base would grow as more affiliates sign up to provide a live feed of their stations’ programming over broadband...Pressed for a hard number of subscribers, Moonves replied, "When Netflix tells you how many people are watching House of Cards, we’ll tell you how many subscribers we have."

It should be fairly obvious that when you're a subscription service, ratings matter less than when you're a traditional broadcaster dealing with advertisers, but this faux outrage at Netflix secrecy was the tone CBS took for much of last week. Case in point is CBS's chief researcher David Poltrack, who couldn't help taking shots at Netflix's original series viewership numbers:

"The average adult watches 5.2 hours of content on Netflix per week, 3 hours of which are spent watching television programming of some kind. Netflix’s original series account for 6.6 percent of that viewing, David Poltrack, CBS chief research officer, said at a UBS conference today in New York. "Self-reported behavior is always subject to error,” Poltrack said. “But it’s all we have. If Netflix disagrees with anything I’m about to report, I welcome them to provide anyone with the correct numbers."

The irony is that CBS is part of an industry that's been intentionally burying its head in the sand when it comes to emerging cord cutting trends for years now, with companies like Nielsen lagging on tracking viewing on tablets and phones, and often obscuring data that tells the industry things it doesn't want to hear. Namely, that the current cable TV cash cow model has a hard expiration date that's coming up faster than executives think. Now contrast CBS's ratings and secrecy-obsessed mindset to Netflix, which points out that ratings aren't as important to the company because they can hinder the creation of good content:

"The reason we don’t give ratings is not to frustrate the press,” said (Netflix chief content officer Ted) Sarandos. “It’s an irrelevant measure of success for us."..."Maybe it has been necessary for the business of entertainment, but it’s been terrible for the creative side of television," he said. "I do think that the ratings discussion has been negative for television."

The end result has been the heavy catering to the lowest common denominator (oh hi, didn't see you standing there, reality television). Note that Netflix isn't saying ratings are worthless, just that they've traditionally been taken too seriously, and this logic only extends so far. Netflix last week premiered its $90 million magnum opus "Marco Polo." It has the second-most expensive budget on television right now, behind only HBO's "Game of Thrones." Early reviews are rather mixed and Netflix obviously isn't going to ignore viewership numbers for a venture of that scope, but the point remains that the traditional cable and broadcast industry has been so obsessed with ratings (quite often incorrect ratings telling them what they want to hear), it has sometimes struggled to see the forest for the trees.

Filed Under: david poltrack, les moonves, numbers, ratings, streaming, ted sarandos, tv
Companies: cbs, netflix

White House Admits That It Still Supports Parts Of SOPA: Wants To Make Streaming A Felony

from the because-of-course dept

Last week, we wrote that Senator (and still for the next few weeks, Majority Leader) Harry Reid was looking for ways to push for a piece of SOPA, making streaming a felony, into law. The story we'd heard from multiple sources was that he was looking to attach it to the USA Freedom Act. His office came out and denied that claim vehemently. Still, multiple sources insisted not only that it was true, but that Reid was still looking for other vehicles to push that through. And... just days later, the White House responded to some (somewhat pointless) White House "We The People" petitions by... announcing that it, too, wanted to turn unauthorized streaming into a felony. This was in response to two separate petitions, Stop SOPA 2013 and Stop SOPA 2014. Neither petition made much sense, as SOPA has been long dead since early 2012. There was never any specific bill in either 2013 or 2014. And yet, Alex Niejelow, the chief of staff to the IP Czar (a position that is in limbo, as the new czar has been nominated, but not yet approved), used those petitions as an opportunity to reiterate that the White House, like Reid, supports making unauthorized streaming a felony.

Niejelow carefully tries to frame the plan as not going after individuals for uploading videos, but the language choices are deliberate here:

To be clear: We are not advocating for, and do not support, Congress enacting criminal sanctions against people who upload their own, non-commercial performances of other artists' works on Tumblr, against the content creators making your favorite mashup on YouTube, or against the users of these services -- like many of you who signed this petition -- who watch and listen to this digital content.

Rather, we think the law should deter the large-scale willful reproduction, distribution, and streaming of illegal, infringing content for profit. We think it is important to combat this type of activity because of the negative impact it has in diminishing the drive and economic incentive to produce the great movies, sporting events, and music that we love and that account for millions of American jobs and billions of dollars contributed to our economy annually.

Almost everything in those two paragraphs is misleading -- sometimes extremely so. As Harvard law professor Jonathan Zittrain helpfully explained back in 2011, the move to make unauthorized streaming a felony, changed the law in subtle, but dangerous ways. It's true, of course, that merely uploading a file would not be considered an offense under that part of the law (it may violate other aspects of the law), but it could still be problematic. Here was Zittrain's discussion, specifically in response to the question of whether or not Justin Bieber could have gotten in trouble for uploading videos of himself covering songs:

No one is saying that the public performance is occasioned by the mere act of uploading or downloading a file -- so a huge part of that analysis is going after straw men. The question is whether placing a file onto YouTube and configuring the placement so that it can be streamed -- indeed, intending that as the only reason for the file being there -- results in a performance as it's streamed to lots of people. Sadly that answer could be yes. Here's the definition of a public performance under 17 USC 101:

To perform or display a work "publicly" means (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

So, the argument would go that Bieber falls under clause (2) -- he's transmitting a performance to a place open to the public ("YouTube") or perhaps simply to the public directly, "by means of any device or process."

The fact that YouTube might also be liable for performing the work (or may or may not have a license if the license is just for it) is irrelevant; you can have more than one party deemed responsible for an infringement. Indeed, think about embedding the video on your own page -- would it matter if the page were served from your own server in your home (the easiest case for liability) or from a third party hosting service with whom you'd contracted, or who let you put it there? Surely putting the stuff on a rental server wouldn't be enough to "launder" liability for the person who put it there. (Again, ignoring whether the third party server could itself be liable, too; this starts to implicate the DMCA safe harbors.) YouTube contributors have their own little home pages on the service, in which their videos are embedded. So, yes, those videos are likely public performances.

Of course, they try to get around this by claiming they don't want this to impact "non-commercial performances." But, the definition of "non-commercial" is pretty fluid. Did you put ads on your upload? Uh oh. Did the video go viral and allow you to do something that made money? Uh oh.

Or how about the "large-scale" aspect. Well, we embed plenty of YouTube videos on this site. Would that make us "large-scale"?

And then there's the "negative impact" argument. Really? What is the actual negative impact from people streaming these works? As we've shown, the actual output of basically all of these industries is rapidly increasing. There doesn't seem to be any evidence of a negative impact at all. It's especially bullshit to slip in "sporting events" in there (but, again shows how sporting organizations, including UFC and MLB, have been key to lobbying for this change), when the sporting events industry is thriving at unprecedented levels, and many of the major sports leagues (especially MLB) have shown that when you make a really good premium product, people will pay.

In fact, literally the day after the White House appeared to be arguing that streaming has created a "negative impact [that is] diminishing the drive and economic incentive to produce great... sporting events," PwC came out with its latest analysis of the sports market in North America, showing that it's nothing but up, up and up for sporting events in the US. If people streaming these events online has diminished the economic incentives, someone forgot to tell, well, everyone. If your job is to be in charge of understanding "intellectual property" in the US, shouldn't facts like this have a role? Here's PwC's data (2014 is estimated, as of October), and it shows a pretty steady upward trend, especially on "media rights," the only part really likely impacted by any streaming: Furthermore, if you look at the full report [pdf] PwC predicts continued massive growth, especially in media rights, but we won't show that because it's speculation.

But, basically, the argument that sports events are somehow facing negative incentives to put on great events because some people are streaming unauthorized versions just doesn't make any sense at all. It makes the claim that such a law is needed incredibly suspect, and hints strongly at the simple fact that this is nothing more than an attempted government favor to certain lobbyists.

Even where sports streaming does occur, it tends to be in situations where the leagues themselves have made it nearly impossible to legitimately pay for access in the first place, with idiotic concepts like blackout rules. Want to massively decrease unauthorized streaming of sporting events? Make better services and drop blackout rules. No need to turn hosting a webpage with some embeds into a felony.

Either way, it seems clear that the White House (and some in the Senate) still don't realize that all of SOPA was a bad idea, including the ridiculous plan to make unauthorized streaming a felony.

Filed Under: alex niejelow, copyright, felony, harry reid, ip czar, justin bieber, petitions, sopa, sporting events, sports, streaming, we the people

Harry Reid Wants To Attach Part Of SOPA To Surveillance Reform Bill

from the that-would-be-a-mistake dept

See the update at the bottom of this post.

Late last night I started hearing rumors that Senator Harry Reid was looking to slip a little something extra into the USA Freedom Act: a key part of SOPA. As you should know by now, last week, Reid surprised many by moving for a cloture vote on the USA Freedom Act. While still controversial in civil liberties circles, many are supportive of this bill as a good first step in surveillance reform -- including EFF and ACLU -- while others are perhaps reasonably concerned about what the bill actually provides. Yesterday, the big tech companies came out in favor of it.

However, yesterday evening I heard through the grapevine that Reid also had a little "gift" he was planning to add to the bill, and I've spent a big part of last night tracking down any details I could find. Basically, Reid wants to attach a part of SOPA to the bill: the felony streaming provisions. You may recall that this was the dangerous plan that was a part of SOPA and a companion to PIPA (though not directly in it) that would have turned merely streaming infringing works into a felony. This got a ton of attention after Fight for the Future created its Free Justin Bieber campaign, after noting that Bieber came to fame by streaming lots of videos of music he didn't license the rights to. Even after SOPA died, the White House still listed the felony streaming stuff in its big wish list. And, just a few months ago, the Justice Department told Congress it wanted streaming to be a felony too.

The reality is that this would be a pretty big expansion of criminalizing copyright infringement. As we explained years ago, there's a reason why "performance" isn't considered a felony in copyright law. Expanding the criminalization of copyright, especially for something as simple as streaming content puts a ton of people at risk. And yes, according to Harvard law professor Jonathan Zittrain, someone doing what Bieber did would face jail time, which is ridiculous.

So why is Reid suddenly doing this? What we've heard is that it's a "favor" to his friends at UFC -- Ultimate Fighting Championship -- who are based in Las Vegas, in Reid's home state of Nevada. Reid and UFC go back for years, with UFC being big supporters of Reid, and UFC has worked with Reid on a number of campaigns. UFC has also been one of the biggest supporters of expanding and abusing copyright law for years. The organization has sued its biggest fans, has sued streaming sites like Justin.tv (and lost) and even claimed copyright on videos it has no rights to, taken by fans.

So it's no surprise that with Reid and UFC being so chummy -- while UFC has staked out a strong public position to expand copyright criminalization -- that Reid would like to do this "favor" for his friends. But it's a massive slap in the face to the tech industry -- Reid's second such massive slap this year. Remember, earlier this year, after the tech industry had finally, finally gotten a few important pieces (not nearly enough, but a great start) for patent reform to the finish line, Harry Reid got a phone call from the trial lawyers and killed the whole thing? If he actually goes through with this plan, it will be yet another massive slap in the face to Silicon Valley. Perhaps that's the reputation Harry Reid wants. The Senator who gives out personal favors to friends, and stands in the way of innovation. I can't imagine that will go over well in the long run. Furthermore, it's almost as if Reid has totally forgotten what happened around SOPA. I can assure him that those who fought against SOPA have not forgotten.

The last I've heard on this so far is that Reid is still looking for a bit more support to attach this to the USA Freedom Act. Hopefully no one gives it to him, and this idea simply goes back in the trash can where it belongs.

Update: Senator Reid's office has posted a response to this story claiming that this is all spin from "Republicans who want to tank" the USA Freedom Act. That's not actually true. While I'm not going to reveal my (multiple) sources on this, Reid's explanation is not at all accurate. We confirmed this with multiple sources -- nearly all of whom are in favor of the USA Freedom Act. We did hear one rumor that there was an effort under way to get a Republican on board to support this plan, but we didn't report that because we couldn't get detailed confirmation on it. What we're now hearing from others, however, is that Reid's office is trying to point the finger directly at one specific Republican Senator, and we have a request in to his office to see if he wants to comment.

Filed Under: copyright, criminalization, felony streaming, harry reid, justin bieber, over criminalization, streaming, ufc, usa freedom act
Companies: ufc, zuffa

If You're Going To Complain About Spotify Payments, At Least Understand A Little Economics First

from the fighting-against-the-future dept

In discussions of Taylor Swift pulling her music from Spotify because the service wouldn't make the music available solely to paying subscribers, which pays higher royalty rates, and Aloe Blacc's Wired op-ed calling for higher royalties for songwriters from streaming services (but see: Spirit Animal frontman Steve Cooper's thoughtful piece in Business Insider on "why Spotify is not the enemy"), there are a few important economic realities being ignored.

Spotify currently pays about 70% of its revenue to rightsholders.  That typically goes to middlemen — publishers for the musical work copyright, who then pay a portion to the songwriters, and record labels for the sound recording copyright, who then pay a portion to the musicians.

VC David Pakman (who testified in November 2012 before the House Judiciary IP Subcommittee about why the current music licensing scheme deters VC investment in new music services) recently analyzed data from middlemen in a few industries and found that many legacy middlemen are not earning the large share they take from creators in the digital age.  Record labels, for example, contributed a lot more value when they coordinated and financed studio time (which can now be done with a basic computer and Internet connection, and possibly a Kickstarter campaign), manufacturing records and CDs and got them to retailers (which is no longer the primary way of selling music), and marketing (which can be done online with free services).  Now, in the digital age, many of these services are no longer needed or performed.

In remarks last week at the Web Summit Conference in Dublin, Bono explained that rather than fighting against streaming, artists should be fighting for transparency:

Spotify is giving up 70% of all their revenues to rights owners.  But it's just that people don't know where the money is going because the record labels haven't been transparent.

The rightsholder middlemen pay a far smaller share to creators than the substantial majority that the services pay, which depends on whether labels have direct deals with services, a digital aggregator/distributor, or whether artists own their rights, and on artists' contracts with their label, as explained in Future of Music Coalition's helpful infographics on how the money flows.

And yet artists appear to often blame the Internet services rather than the publishers and labels.  One potential reason for this is that the artists aren't actually making the decisions; the publishers and labels are, because they own the rights and have the bargaining power.  But often it's those contracts that are the reason they're not getting paid enough, not the services.

Pakman's data has Spotify currently paying about 70%.  But how much should they pay?  What is the right amount?  100%?  More than 100%?

Lost in many of these discussions is the reality that music sales and streams are not the only way to make money anymore.  Streaming services help artists find fans, which enables them to generate sales of goods, like concert ticket sales and other scarce resources.

Another important point is that consumers are going to spend different amounts on music.  Many of them are happy to spend nothing on recorded music, and it's better for that to happen through ad-supported streaming sites like Spotify than through piracy.  (For some more thoughts on the economic theory behind this, including demand elasticity and whether an infringement is a lost sale, see this post.)

Rightsholders may have delayed the existence of services like Spotify, and may still want them to not exist (which would occur if they were required to pay out more than they take in).  But consumers want services like Spotify.  And they use them.  About 40% of Spotify's more than 40 million users were listening to Taylor Swift before she pulled her music, which some estimates said comes out to $84,000 a week.

Services like Spotify aren't just competing against digital sales on services like iTunes.  (Although in Europe, where Spotify launched first, Spotify is now generating more royalties for artists than iTunes, which comports with recent research finding that global streaming revenue will soon surpass physical sales.)  As DisCo has said in many posts (see, e.g., 1, 2, 3):  Giving consumers lawful affordable options for listening to what they want when they want it in a convenient format reduces piracy.

Reposted from the Disruptive Competition Project

Filed Under: aloe blacc, business models, economics, music, streaming, taylor swift
Companies: spotify

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

from the not-looking-good dept

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."

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