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