If You Lament The State Of Politics Today, Lament The Loss Of Aereo

from the lessons-for-Locast dept

Disclaimer: I did a teeny bit of legal work on a teeny part of Aereo's defense against the litigation onslaught seeking to obliterate it. But that's not why I think the Supreme Court's decision enabling that obliteration was terrible. On the contrary, it's why I wanted to work on the defense at all, because it was always apparent that trying to use copyright to crush Aereo was a terrible idea that would have terrible consequences. And time has, of course, born this prediction out.

It had never made sense why all these TV stations would be suing Aereo in the first place. After all, isn't the thing that TV stations always want a larger viewership? With a larger viewership they can charge more for ads and make more money. So a service that helps them get that larger viewership (and at no cost to themselves) seems like something they should actually be glad to have. In any case, it was certainly quite odd to see them resent something that helped connect them with bigger audiences beyond what their broadcast signal could manage.

And it made even less sense for a public television station like WNET to be part of any of these lawsuits. Commercial profit was never supposed to be its goal. Instead, pledge drive after pledge drive has always begged the public for the funds necessary to show its programming. Yet there it was, now trying to eradicate a service that helped people actually watch that programming. Which necessarily prompts the question of why anyone should ever bother to give money to WNET ever again if it was so bound and determined to limit the number of people who could benefit from it.

Anyway, while the fight against Aereo made no sense, and the US Supreme Court decision killing it made even less, the result is that today we live in a world without it, where the reach and influence of local TV stations has effectively been damned to the geographical limits of their signal strength. And this pointless and artificial limitation has had a cost.

Because think about what has been happening in recent elections: results end up hyper-localized, with impenetrable divisions between red and blue states, urban and rural regions, large markets and small, etc. At least in the story of the country mouse and city mouse they both got to visit each other and learn what each other's lives were like. But thanks to the Supreme Court, now it is so much harder for Americans everywhere to learn about what life is like outside the areas where they live.

Aereo helped build connections between these places by overcoming the barriers imposed by distance. Instead of people only being able to see the broadcasts they could receive on their own antennas, it gave them a window into other communities by allowing them to essentially rent antennas in these other places and experience the broadcasts aimed for people there. Certainly if they'd rented an entire house in these other places there would have been no issue with them using its antenna to watch these broadcasts. So it hardly follows that it should be illegal if they simply saved the enormous expense of moving to that other place and instead only rented the antenna. (Which, despite the Supreme Court's technical misunderstanding about what Aereo did, is exactly what Aereo – and, for the past year or so, now Locast – actually did.)

Especially not when, as described above, it would have been good for those stations. And especially not when it also would have been good for the nation. It does us no good to remain little regional enclaves unable to find common ground between each other. Sharing in each other's broadcast media would go a long way to bridging those geographically-enforced cultural gaps. Indeed, it would seem to vindicate the very goals of copyright, to promote the progress of arts and sciences, to ensure that local insight could be efficiently exchanged among these regions. Instead, however, the Supreme Court, in its decision to contort copyright law to effectively ban Aereo, doubled-down on the physical restrictions curtailing that exchange with artificial legal barriers that can only serve to enforce the effects of that distance upon the national electorate. And our democracy has been paying the price for this decision ever since.

Perhaps things can be different with Locast. While too new to have been able to have had as much impact on national political culture as a mature service would have had by now, since last year it has tried to thread the confusing needle the Supreme Court set out for these sorts of antenna-rental services. As the courts now stand to review the legal questions they raise again, one can only hope the courts better understand this time around the public interest in knowledge exchange that's at stake, which copyright law is supposed to advance, not smother.

Filed Under: broadcast tv, copyright, divisions, local news, supreme court
Companies: aereo, locast

Big Four Broadcasters Sue Streaming Video Provider Locast, Claim It's 'Aereo 2.0'

from the when-at-first-you-don't-succeed dept

The nation's four biggest broadcast networks (ABC, CBS, Comcast NBCUniversal and Fox) have filed suit (pdf) against a streaming video nonprofit they say is "illegally using broadcaster content." New York based Locast offers viewers access to over the air broadcasts via the internet to roughly 13 cities (about 31% of the US market). Its website notes the operation is funded by donations and that access to this content (again, already accessible for free via an antenna) should be a consumer "right" given that US consumers technically own the airwaves these programs are broadcast over.

Not too surprisingly, the big four broadcast networks disagree, something we had expected:

"Locast is simply Aereo 2.0, a business built on illegally using broadcaster content,” the lawsuit reads in part. “While it pretends to be a public service without any commercial purpose, Locast’s marketing and deep connections to AT&T and Dish make clear that it exists to serve its pay-tv patrons."

Aereo, you may recall, attempted to set up a bunch of cumbersome micro-TV antennas which it could then use to stream broadcast TV to paying subscribers. The company's technical approach was intentionally designed to be arguably ridiculous in a bid to comply with the law and a number of historically just as ridiculous copyright case rulings. The Supreme Court ultimately demolished Aereo with a dubious ruling that made numerous assumptions and provided zero guidance for companies who wanted to enter the space but comply with the law.

Enter Locast. The company was developed by former FCC lawyer and media executive David Goodfriend, who, we noted previously, designed the service entirely from the ground up in a bid to try and comply with (and test the logic of) the current legal minefield. It's funded in part by AT&T and Dish Networks. But unlike Aereo, Locast is a non-commercial entity offering access to over the air broadcasts via the internet for free. In an interesting New York Times profile piece last January (a good read to fully understand what Locast does), Goodfriend had this to say:

"We really did our homework,” he said. “We are operating under parameters that are designed to be compliant within the law."

Of course Aereo also thought it had designed a system that would comply with the nation's muddy laws on this subject, and yet here we are. Goodfriend (quite correctly) notes that the public technically owns the airwaves and that initially, over the air broadcasts were designed as a free, public good, something that's been lost in a mad scramble for cash in the years since:

"Our society got way over-commercialized in the ’40s and ’50s, when media policy was being hammered out,” he said. “As a result, we don’t have stuff for the public anymore.”

“The American people have given you something really valuable, the airways, for free,” he said, talking about the broadcasters, his eyes popping at the word “free.” Slowing down for emphasis, he added: “So shouldn’t we get something back for free? Which is great television. That’s the social contract, right?"

The difference being that Goodfriend designed Locast after teaching the Aereo case to law students at Georgetown. It's built from the ground up with a solid understanding of what happened to Aereo, and the expectation that the operation would likely be sued. Whether that matters of course will depend entirely on the Judges that hear the case. The lawsuit leans heavily on the claim that because AT&T and Dish have helped fund the project, it's little more than a ruse to help some companies avoid paying retransmission fees (ignoring that both companies pay these fees to stream this content via other services already).

This should be a very interesting one to watch.

Filed Under: airwaves, broadcast tv, copyright, david goodfriend, free, public interest, spectrum
Companies: abc, aereo, at&t, cbs, comcast, dish, fox, locast

Former FCC Official Attempts To Create An Aereo That The Supreme Court Won't Kill

from the quack-quack dept

If you've been following copyright issues for more than a few years, you surely remember Aereo, a company that attempted to set up a bunch of micro-TV antennas which it could then use to stream broadcast TV to paying subscribers. What was fascinating about Aereo was how it was set up in a manner that was positively insane to any technologist -- but was considered "necessary" to comply with the law, following a bunch of nonsensical copyright rulings from other companies trying to offer streaming TV. And, incredibly, its careful following of the rules was declared to be proof that it was trying to "get around" the rules.

And then, even more bizarre, the Supreme Court ruled against Aereo using no actually defined standard, but basically just saying that it looked too much like a cable service, so they'll call it a cable service (something I've referred to as the Supreme Court's "looks like a duck" doctrine). As we pointed out at the time, part of the problem with such a weird test is that it provided zero guidance to tech innovators who wanted to build a system within the law. Basically, the Supreme Court (or lower courts) can now decide that something "looks" too much like another system, and decide it's magically illegal... just because.

However, it appears that at least one operation is trying again with an Aereo-like approach. And once again, it's taken a very legally-focused approach. Perhaps that's because it's been set up by a lawyer, David Goodfriend, who formerly worked for the FCC (and in the media industry). The NY Times has a big article about his Locast operation, and how he's hoping to get sued to prove that his approach is legal, where Aereo's failed. The basic approach does sound quite like Aereo:

On the roof of a luxury building at the edge of Central Park, 585 feet above the concrete, a lawyer named David Goodfriend has attached a modest four-foot antenna that is a threat to the entire TV-industrial complex.

The device is there to soak up TV signals coursing through the air — content from NBC, ABC, Fox, PBS and CBS, including megahits like “This Is Us” and this Sunday’s broadcast of Super Bowl LIII. Once plucked from the ether, the content is piped through the internet and assembled into an app called Locast. It’s a streaming service, and it makes all of this network programming available to subscribers in ways that are more convenient than relying on a home antenna: It’s viewable on almost any device, at any time, in pristine quality that doesn’t cut in and out. It’s also completely free.

There are a couple of difference between Aereo and Locast, starting with the fact that Locast is offering its services for free. The second is that Locast is set up as a non-commercial entity, rather than a for-profit company (which also helps explain the "free" to subscribers bit). And it is true that copyright law is somewhat kinder to non-profits. But just barely. Goodfriend thinks he's on solid legal ground, though, to be fair, so did Aereo.

“We really did our homework,” he said. “We are operating under parameters that are designed to be compliant within the law.”

He also notes, correctly, that the whole point of over the air terrestrial broadcasts is that they're supposed to be available for free, to anyone with an antenna. That was kind of the whole point. On top of this, of course, courts have already said that it's perfectly legal to stream content that you capture legally via an antenna over the internet for viewing. The real difference here, as it was with Aereo, is just who technically owns the antenna.

“The American people have given you something really valuable, the airways, for free,” he said, talking about the broadcasters, his eyes popping at the word “free.” Slowing down for emphasis, he added: “So shouldn’t we get something back for free? Which is great television. That’s the social contract, right?”

The article further notes that Goodfriend -- who initially designed the idea of Locast while teaching the Aereo case to law students at Georgetown -- would "welcome a legal challenge" from the TV networks to prove that his approach is legal -- though it's unclear if the networks feel like going after him. The article quotes Aereo founder/CEO Chet Kanojia, who points out that the networks ignored Aereo until it raised a bunch of money from Barry Diller, and then suddenly it became worth it to sue. Goodfriend notes that he's currently chasing down funding deals, even approaching his own version of Barry Diller in Dish Network's Charlie Ergen (for whom Goodfriend used to work), but so far has not closed anything.

Assuming Locast actually does start to catch on (and a big story in the NY Times certainly will give it a pretty big bump), I would be surprised if the networks didn't eventually sue, and then we get to go through the Aereo debate all over again. Quack, quack, quack.

Filed Under: antennas, broadcast tv, copyright, david goodfriend, over the air, quacks like a duck, streaming, tv
Companies: aereo, locast

NBC Exec: Netflix Poses No Threat To Us, God Wants You To Watch Expensive, Legacy TV

from the not-just-a-river-in-Egypt dept

The traditional cable and broadcast industry's chief export is no longer quality programming, it's denial. First the industry denied cord cutting even existed. Then it acknowledged it existed, but pretended it was only something losers living with mommy had any interest in. More recently the cable industry has acknowledged that yes, there is something that vaguely looks like a mammoth tsunami looming on the horizon, but people are totally overreacting because the cable industry is just so god damned innovative.

Historically, the cable industry has needed all the help it could get when it comes to laboring under the delusion that the legacy cable cash cow will live forever. And, as Nielsen's failure to provide real data on cord cutting has shown, the industry employs plenty of people happy to take money in exchange for telling industry executives precisely what they want to hear. Lending a hand this week was NBC's president of research and media development Andy Wurtzel, who proudly told attendees of the Television Critics Association's winter press tour that neither Netflix nor YouTube pose a "consistent" threat to cable.

His only evidence? That Netflix's top shows still only get a fraction of the viewership that traditional cable gets:

"Symphony measured the average audience in the 18-to-49 demographic for each episode within 35 days of a new Netflix series premiere between September and December. During that time, Marvel's Jessica Jones averaged 4.8 million viewers in the demographic, comparable to the 18-to-49 ratings for How to Get Away with Murder and Modern Family. Master of None drew 3.9 million in the demo and Narcos was third with 3.2 million."

Nobody denies that cable TV's audience still towers over that of streaming video services. That's never been in dispute. Nor has anyone really debated the fact that cord cutting is a slow but steady phenomenon (NBC's parent company Comcast lost 48,000 video subscribers last quarter). But that doesn't really change the fact that the threat obviously exists, or that cable needs to dramatically change to adapt to it. But Wurtzel for some reason seems convinced that because viewership for Netflix hit shows drops off after a few weeks of binge watching, this somehow means cable has nothing to worry about:

"Wurtzel said Symphony's data also revealed that most viewers of those SVOD shows return to their old viewing habits by the third week. "[By then], people are watching TV the way that God intended"—that is, via traditional, linear viewing—said Wurtzel. "The impact goes away."

That's because Netflix has "a very different business model—their business model is to make you write a check the next month," said Wurtzel. "I don't believe there's enough stuff on Netflix that is broad enough and consistent enough to affect us in a meaningful way on a consistent basis."

But again, cord cutting isn't about just Netflix. It's about picking and choosing among a myriad of different options as an alternative to soaring cable rates. One fifth of pay TV customers are expected to cut the cord next year. Only 51% watch live TV (as "god intended"?). Consumers are tired of paying an arm and a leg to get 194 channels while only watching, on average, about 17 of them. And, to put it bluntly, cable's biggest customers are dying, and being replaced by "cord nevers" that have absolutely no interest in paying too much for too little.

The threat is more than just consistent, it's inevitable.

Fueled by the kind of bubbly optimism provided by Wurtzel, legacy cable honestly believes it's doing a bang up job adapting to the Netflix threat. Except that's not remotely true; the industry refuses to compete on price, consistently fights more flexible programming options tooth and nail, and still confuses proclamations of "Hey, we're innovating!" with actual innovation. Were I Netflix, Amazon, Apple, or any of a million other companies eager to jump into the field, I'd be thrilled that guys like Wurtzel continue to provide a false sense of security across an industry so desperately in need of a disruptive kick in the ass.

Filed Under: andy wurtzel, broadcast tv, cord cutting, denial, internet, nbc, streaming video, tv
Companies: comcast, nbc universal, netflix

FilmOn Loses A Second Case, Meaning That Supreme Court May Get A Second Shot At Aereo Decision

from the it-ain't-over-'til-alki-david-sings dept

Earlier this year, lots of copyright law watchers were taken by surprise when Alki David's video streaming service, FilmOn (though its name constantly has changed) actually won a case in California. If you don't recall, the service was a sort of fake knock-off of Aereo, enabling streaming broadcast TV service on the internet. Alki David, an eccentric, publicity-hound wealthy guy, had been sued earlier with a similar service, using a different technical infrastructure, and had responded with some ridiculous countersuits. When Aereo hit the scene, and had been carefully vetted by copyright lawyers who believed (strongly) that it was following the letter of the law, David suddenly declared that FilmOn was using the same micro-antenna infrastructure and got sued.

In the early days, Aereo was winning its cases, while FilmOn was losing its cases. It was so ridiculous that I heard conspiracy theories that the Hollywood-connected (he likes to promote the fact that he's acted in some movies) David had actually set up FilmOn as something of a legal foil to Aereo to set precedents in one direction. That's probably too big of a conspiracy theory, but either way, Aereo made it to the Supreme Court and famously lost when the Court made up its weird "looks like a duck" test, saying that Aereo "looked" like a cable TV system, and that Aereo's service was a "public performance" and thus infringing.

After the dust settled, people realized that, based on the Supreme Court ruling, it sounded like an earlier 2nd Circuit appeals court ruling in 2011 over a company named ivi was possibly overturned. ivi offered a similar service, but claimed that it was a cable TV service and just had to pay compulsory Section 111 fees to rebroadcast broadcast television. Aereo and FilmOn both quickly pivoted in their cases to argue that if the Supreme Court said they "looked like" cable, then the ivi ruling was no longer good law, and they, too, should be able to operate just by paying the compulsory licenses. For Aereo, the lower court didn't buy it. It wasn't going that well for FilmOn either, with a NY court actually holding the company in contempt for pushing this argument.

And then there was the California ruling from earlier this year... followed up this week by another loss for FilmOn (found via Eriq Gardner at THResq), this time in DC. The ruling itself is apparently under seal so the exact reasoning is not clear, but it appears that a real circuit split is potentially developing, meaning there's a real chance that, at the very least, the issue of whether or not online streaming services can just pay Section 111 compulsory fees could end up before the court. It would be somewhat ridiculous and hilarious if FilmOn ended up winning that argument, while Aereo (and ivi) got completely shut down. Copyright law can be weird sometimes.

Filed Under: alki david, broadcast tv, cable tv, copyright, section 111, streaming, tv
Companies: aereo, filmon

Netflix CEO Puts An Expiration Date On Traditional Broadcast Television: 2030

from the revolution-is-IP-televised dept

Netflix's path of disruption has been nothing if not entertaining, whether it's the company's attempt to disrupt antiquated theater release windows with simultaneous theater and streaming releases, or its foray into original content. As Netflix passes the 53.1 million subscriber mark worldwide, it's been equally entertaining to watch the global legacy TV industry stumbling around trying to thwart this inevitable progress, whether it's AMC theaters refusing to carry Netflix's "Crouching Dragon" sequel, the increasingly absurd shenanigans we've seen afoot on the ISP interconnection front, or Australia's attempts to outlaw VPNs.

When it comes to measuring the transition to Internet video, viewer tracking firms like Nielsen have been very happy to ignore data illustrating Netflix's rise -- so broadcast and cable executives are more comfortable with their heads buried deeply in the sand. Speaking in Mexico to promote his company's international expansion efforts, Netflix CEO Reed Hastings this week stated Nielsen's recent announcement to finally track Netflix and Amazon viewers was "not very relevant," since Nielsen still isn't capable of tracking phone and tablet viewing specifically.

Hastings also took the opportunity to offer up his predicted expiration date for the legacy TV industry:

"It's not very relevant," he said. "There's so much viewing that happens on a mobile phone or an iPad that [Nielsen won't] capture."...As for free-to-air TV, Hastings believes its days are numbered. "It's kind of like the horse, you know, the horse was good until we had the car," he said. "The age of broadcast TV will probably last until 2030."

Maybe, maybe not. There have been significant strides in getting broadcasters to loosen up licensing rights for live TV streaming, and that's going to result in a slew of standalone streaming services launching in 2015 from the likes of Dish Networks, HBO, Showtime, Sony and Verizon Wireless. Netflix, Amazon and company have also been making great strides in developing original content that doesn't suck, from Netflix's "House of Cards," to Amazon's "Transparent." Even the industry analysts that used to mock and deny the cord cutting trend have finally, quietly, acknowledged the trend is real.

That said, the incumbent gatekeepers won't magically disappear as IP television becomes the norm. Whether it's the allegations they're intentionally throttling interconnection points, attempts to regulate Netflix to death, or the use of usage caps to protect TV revenues, there's every indication they're not going to be taking the transition gracefully. The industry's core strategy at the moment is to use regulatory to ride the legacy cash cow right into the ground with a series of endless rate hikes for massive channel bundles, then complain vocally when users fail to see the value in that equation.

Only when consumers begin to cut the cord en masse will the cable industry finally respond to consumer demands for things like cheaper, a la carte content -- probably right around the year 2029.

Filed Under: broadcast tv, reed hastings, tv
Companies: netflix

As Expected, Aereo Pleads Its Case For Survival

from the cable-company dept

Aereo is back in a district court trying its "okay, fine, you say we look like a duck, we'll act like a duck" explanation so that it can stay in business and pay the statutory rates for a cable company. As you hopefully know by now, this is in response to the Supreme Court's "you're a cable company!" ruling. The broadcasters, of course, just want Aereo to die, so they claim that even if the Supreme Court declared it a cable company, the company still can't pay statutory rates. Aereo tried to skip the district court and go straight to the appeals court, but that attempt was (probably rightfully) rejected recently, so now it's back at the district court, once again making the case for it being a cable company.

Its key argument is, basically that, during oral arguments, Justice Sotomayor more or less said if the Court finds Aereo to be a cable company, then it could just pay Section 111 statutory fees and be legal.

JUSTICE SOTOMAYOR: . . . But I look at the definition of a cable company, and it seems to fit. . . . [Aereo] [m]akes secondary transmissions by wires, cables, or other communication channels. It seems to me that a little antenna with a dime fits that definition. To subscribing members of the public who pay for such service. I mean, I read it and I say, why aren't they a cable company?

MR. CLEMENT: Well, Justice Sotomayor, a couple of things. First of all, I mean, I think if you're—if you’re already at that point, you’ve probably understood that just like a cable company, they’re public—they’re publicly performing and maybe they qualify as a cable company and maybe they could qualify for the compulsory license that's available to cable companies under Section 111 of the statute.

JUSTICE SOTOMAYOR: But it just gets it mixed up. Do we have to go to all of those other questions if we find that they’re a cable company? We say they’re a c[]able company, they get the compulsory license.

At the time, most folks kinda wondered why Sotomayor was going off on this tangent, rather than on the key issues related to the case, concerning the public performance right. What people didn't expect was that the Court would come up with its wacky "looks like a duck" test. But since it did, it certainly seemed to imply that Aereo could just get the compulsory license -- which it's now seeking to do. The company further argues that Justice Breyer, who authored the majority decision, fretted during oral arguments that it would be problematic if Aereo were not allowed to get a compulsory license:

JUSTICE BREYER: Once you take them out of the compulsory licensing system, they're going to have to find copyright owners, who owns James Agee's pictures? Who owns something that was written by—like a French silent film in 1915? I mean, the problem is that they might want to have perfectly good things that people want to watch and they can't find out how to get permission. That is a problem that worries me and it worries me again once you kick them out of the other systems.

Aereo also counters the broadcasters argument that the ivi ruling says that online streaming services can't qualify as cable companies for statutory rates doesn't apply here. Earlier, Aereo argued that the Supreme Court ruling effectively overturned the ivi ruling -- an argument that makes a lot of sense. But here, Aereo goes even further, noting some key differences between ivi and Aereo, including a pretty big one: ivi was "geographically unbounded." That was a key part of why ivi lost, and Aereo notes that its service is different, in that it offered a geographically-specific service.

First, the technology at issue in ivi involved geographically unbounded transmissions, which the Second Circuit noted was “vastly different” from the technology in Fortnightly and Teleprompter.... By contrast, the Supreme Court found that, with respect to “Watch Now,” Aereo is “overwhelming[ly] like[]” and “highly similar” to the technology in Fortnightly and Teleprompter.... As a result, this case is factually distinguishable from ivi on the very point that drove the Second Circuit’s decision. Indeed, the unrestricted nature of ivi’s transmissions was the determinative fact for the Second Circuit, which noted that Section 111’s compulsory license scheme was intended to support local market—rather than national market—systems.... As a result, the court found that ivi’s nationwide retransmission did not seek to address the important issues of availability of local over-the-air television signals, and it was therefore not the type of service Congress intended the compulsory license to cover.... Because Aereo’s “Watch Now” technology does not give its subscribers access to broadcasts outside of their home DMA, and instead gives only geographically-restricted access (with and through corresponding local physical antenna facilities), and because (as the Supreme Court found) the technology is “virtually identical” to the technology Congress addressed in the 1976 Amendments, Aereo’s “Watch Now” technology is not governed by ivi.

Aereo makes another interesting argument for survival as well. Even if it doesn't qualify for Section 111 compulsory rates, it should still be allowed to keep its "Watch Now" feature working, because of the DMCA. Basically, it's saying that even if the DVR functionality is deemed infringing, it has a stronger argument around the live streaming, based on the DMCA. All the parenthetical quotes supporting this are from the Supreme Court's ruling...

If the Court concludes that Aereo is not entitled to a Section 111 license, a preliminary injunction should still not enter because Aereo is entitled to the 17 U.S.C. § 512(a) [DMCA] safe harbor because its “Watch Now” function is a “transitory digital network communication.” Each of the Section 512(a) elements is satisfied and undisputed. First, the transmissions of the material are initiated by or at the direction of a person other than Aereo.... (“Aereo’s system remains inert until a subscriber indicates that she wants to watch a program.”). Second, the transmission, routing, and storage of material are carried out through an automatic process, without selection of the material by Aereo.... (“in automatic response to the subscriber’s request”); ... (agreeing with dissent that Aereo does not “select” the content). Third, Aereo does not select the recipients of the material, except as an automated response to the user.... (“When an Aereo subscriber selects a program to watch, Aereo streams the program over the Internet to that subscriber.”). Fourth, no copy of the material transmitted is made accessible to anyone but the user who made it, and no “Watch Now” copy is kept for a longer period than is reasonably necessary.... (“It streams the content of the copy to the same subscriber and to no one else.”); ... (“If the user does not press ‘Record’ before the program ends, the copy of the program created for and used to transmit the program to the user is automatically deleted when it has finished playing.”);... (“The file saved to the hard disk using the ‘Watch [Now]’ function is not automatically retained unless the user clicks ‘Record’ while the show is still open on the user’s web browser.”). Fifth, the material is transmitted without modification of its content....

As a result of satisfying this safe harbor provision, Aereo cannot be liable for the claimed “public performance” of Plaintiffs’ claimed copyrighted works. And, Plaintiffs’ requested preliminary injunction cannot be entered because it is outside the scope of a permitted injunction under the DMCA.

That could lead to some interesting legal questions going forward.

Finally, Aereo argues that no injunction is necessary, because there's no evidence of "irreparable harm." Here it probably hurts that CBS and other networks more or less admitted that even if Aereo had won the "harm" would be minimal.

The Section 111 arguments about whether or not it's a cable company will continue to make the headlines, but the DMCA argument here may be the most interesting one of all (and one that the broadcasters will most freak out about).

Filed Under: broadcast tv, cable company, copyright, dmca, dvr, networks, section 111, streaming
Companies: abc, aereo, cbs

TiVo Releases A 'Legal' Version Of Aereo, Called Roamio, Proving That Aereo Really Was About Cable Length

from the wherefore-art-thou-roamio dept

TiVo has released a new product called "Roamio" which looks suspiciously like the recently-declared-infringing Aereo. Roamio lets users "record, store and playback" over the air programming. Just like Aereo. There's just one distinction -- and it apparently makes all the difference in the world: Roamio's cable length is a lot shorter. As David Post notes, while Aereo and Roamio's services are nearly identical, the length of the cable changes the legal dynamic:

I’m pretty confident that the new TiVo box steers clear of any copyright problems — not the first time, and probably not the last time, that our too-complex and illogical copyright law draws opposite conclusions when applied to functionally equivalent technology. The new Roamio is the precise analogue of the Sony Betamax – just a box allowing customers to record that to which they already had free access, and to play those recordings back to themselves — the distribution of which, the Court declared way back in 1984 in the seminal Sony v. Universal case, did not constitute copyright infringement. Aereo tried to make this argument (that it was just a Betamax dressed up in new technological garb) but failed – in part because it was supplying not only the recording/playback capability, but the antenna itself, to customers. This seemed to be important to the Court, because it made it more difficult for Aereo to argue that it was just recording material the customer already “owned”; no, the Court said, Aereo was actually going out and getting this content for the customer, and then recording it, which took it out from under the Sony no-infringement umbrella. More importantly, but sticking a separate box in each user’s home, TiVo avoids the charge that was fatal to Aereo, with its centralized facility: that it is “publicly performing” the copyrighted programs in the OTA broadcasts. It’s close to impossible to argue that TiVo is somehow publicly performing copyrighted works by selling these boxes – whatever “performances” take place inside users’ home are pretty clearly non-infringing “private” performances.

In short -- just as we've pointed out from the beginning -- the only basis on which Aereo might be infringing is that the copyright law is different if you have a short cable between the antenna and your screen (TiVo) or a long cable (Aereo). It seems somewhat ridiculous that the length of the cable could possibly change the analysis of a copyright case, but welcome to today's nonsensical copyright regime.

Of course, Post notes that the broadcasters still might try to sue anyway, and that does seem likely. Remember, they're already suing DISH over its advanced DVR technologies. And the networks actually are trying to claim that the Aereo ruling helps them in that case (though it's a very weak argument). So there's a half decent chance they'll sue Tivo over Roamio as well.

It seems fairly clear at this point: the broadcasters have decided that any innovation that lets the public watch TV in a better way must be an existential threat that should be sued out of existence. It's felony interference with a business model, and tragically, copyright law seems to be the most popular and distorted tool for those claims.

Filed Under: broadcast tv, cable length, copyright, dvr, over the air tv, roamio, tv
Companies: aereo, tivo

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

Yet Another Company Rigs Up A Silly Technical Setup To Let You Watch Broadcast TV On Your Mobile Device

from the legality's-a-mess dept

And here we go again. Peter Kafka has the details of a new company, called Bamboom, which will let people stream broadcast TV to their iPads, and which must be waiting for the inevitable lawsuit. The idea appears to be a mix of ivi and Zediva.

If you remember, ivi is the company that wants to stream broadcast television, and is claiming it's legal based on a questionable interpretation of current copyright laws -- an interpretation that (so far) the courts aren't buying. Zediva, on the other hand, is offering streaming DVDs by literally placing DVDs in DVD players and streaming just that one copy to users, relying on the Second Circuit court's ruling in the Cablevision case to suggest that if you can do something legally in your living room, it should also be legal to be done at a hosting center. In other words, it's arguing that the length of the cord shouldn't matter. If a DVD player is in your home or in a data center a few miles away, does it matter if the process (put DVD in player, watch on screen) is the same? The MPAA has sued and Zediva is currently fighting that lawsuit (with some impressive legal horsepower).

Bamboom basically appears to be using both of these arguments. It's streaming broadcast TV only, and is also assigning a single antenna to each user who is streaming.

The company is still going to get sued, of course. The TV companies wouldn't have it any other way. But, really, all it demonstrates is how ridiculous the laws are here. This company has to set up a ridiculously convoluted technical system that is not at all efficient and is downright wasteful, just to provide a simple service that is technically easy to provide if legal complications didn't get in the way. I don't think the service is particularly useful (do people still watch broadcast TV?), but that doesn't mean it should be illegal.

Filed Under: broadcast tv, copyright, mobile, streaming, tv
Companies: bamboom, ivi, zediva