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Appeals court upholds legality of Aereo’s “tiny antennas” scheme

235 points by yk 14y ago

DannyBee 14y ago
The dissent on this bothers me as a lawyer. It basically says the whole thing is a sham to use a perceived "loophole in the law". IE By complying with the exact requirements of the law, they are committing a sham. It's a policy argument, not a legal one. A sham is doing something like "i'll sell my brother my house for $1". That's a sham. You are doing something to try to trivially comply with contracts law (which requires adequate consideration), but the $1 you are giving is really trying to cover up the fact that it's really a gift. But that's not the argument the dissent makes, the argument it makes is "i don't like this behavior, so i will villify it" and act like it's a sham. The law imposes plenty of technical barriers to doing things. I could make an amazing wireless system if i could use whatever transmitter power i liked, but the law prevents me. The fact that they could use one large antenna is exactly right, but it changes nothing, because the law appears to prevents them from doing so. Following the technical requirements of FCC law is not a sham, it's "what the law requires you do". Following the technical requirements of copyright law is not a sham, it's "what the law requires you do".
- jes5199 14y ago
  can you explain what the legal mechanism is that makes a $1 house sale illegal? I don't understand how it's different.
  - ChuckMcM 14y ago
    Its not illegal, its a "sham" (which is to say the house is worth much more than $1 and the sale has an ulterior motive). Similarly car sales where the car costs $1 but the "handling" charge is $15,000. The sham is that you pay sales tax on the sale price (that was fixed by paying sales tax on the blue book price but I digress).
    - rorrr 14y ago
      Sham isn't illegal. I don't understand your complaint. So they used the law in a creative way. Good for them.
  - danielweber 14y ago
    Perhaps not "illegal," but it would nearly always be done in an attempt to bypass taxes. "I sold it to Joe for $1, I have no income tax to report, ha ha!"
    - guan 14y ago
      In fact, if the seller paid more than $1 for the house, he can take a nice deduction for the “loss.” In this example, in the US, it will be obvious to the IRS that the transaction is not arms-length, and they might levy gift tax on the fair market value of the house. They already thought of this loophole. There are, in fact, situations where the law is written to look more at intent than technicalities, for example in many areas of US immigration law, or generally in tax law when determining where a person’s residence is. That’s not always a good idea either because it leaves a lot of discretion for government officials and creates uncertainty about what the law is. An uncynical observer of the political system would say that the legislature has already thought of this: they’ve made the law very technical in areas where they want it to be, and less so in other areas.
    - joonix 14y ago
      You're mixing up contract law and IRS regulations. The $1 sale is a valid contract, but somebody will likely pay taxes on it, probably the recipient since he received a house at below fair value, which can be considered income.
      - DannyBee 14y ago
        The $1 sale may not be a valid contract, actually, it depends on the state, and whether they are still completely common law or not. Basically, under the restatement views, nominal consideration = no consideration under common law views, nominal consideration = consideration.
- ChuckMcM 14y ago
  I think its useful as an exercise to point out the challenges in Copyright law. Using 22nm MEMs technology I could imagine that I can get 1,000,000 antennas on a die which are clearly articulated when viewed in an electron microscope. Then I can sell these chips for $10,000 each to companies that want to use this "loophole".
  - fnordfnordfnord 14y ago
    Well, maybe, but not if the antennas need to be functional. To be functional there are physical laws that must be obeyed.
- rayiner 14y ago
  As a lawyer, it was the majority's approach that bothered me. Simply, this hyper-technical approach makes for bad law. The court would've been better served here just saying it was fair use because the ads were preserved and the streams contained content that could be watched for free over the air anyway. Throw in the additional public consideration in this case, which is that the content owners are taking advantage of public airwaves to air this content in the first place, and the need to perpetuate this bizarre loophole disappears. The problem here is: what does "public performance" mean in the context of internet broadcasts? Cablevision just covers that consideration with mud. The answer is probably: the distinction of "public performance" is completely meaningless when talking about internet streams.
  - jackalope 14y ago
    "...it was fair use because the ads were preserved..." Since when does fair use require the preservation of ads or any specific portion of the content? Your argument dilutes the meaning and intent of fair use. Even the matter of being free or not has no bearing. The majority wisely avoided this area and fundamentally upheld the fair use rights of the users. The dissenting opinion confuses the issue by discussing licensing agreements, even going so far as to suggest fair use is somehow illegal.
    - DannyBee 14y ago
      "Since when does fair use require the preservation of ads or any specific portion of the content? " When "the effect of the use upon the potential market for or value of the copyrighted work." became a factor that must be considered in fair use? While the 4 factors were not meant to be all-inclusive, there's a great law review article that shows that something like 99% of court decisions only ever consider those factors
  - deleted 14y ago
    [deleted]
  - kyllo 14y ago
    We're going to have bad law that treats bits as physical objects, hyper-technical workarounds and loopholes until we, as voters, confront the reality that content providers are now "charging for smells," and force Congress to do something about it. http://www.paulgraham.com/property.html http://www.paulgraham.com/property.html
- joonix 14y ago
  Contract law doesn't require adequate consideration.
  - tokenadult 14y ago
    Contract law DOES require "consideration" to form a contract, but consideration indicates dickering (negotiation) more than it indicates a set amount of money. (Yes, I am a lawyer too.) The dollar amount needed to distinguish a real estate conveyance that is a bona fide sale from one that is a gift is a separate issue from contract law, so I empathize with your disagreement with the grandparent comment.
    - DannyBee 14y ago
      "The dollar amount needed to distinguish a real estate conveyance that is a bona fide sale from one that is a gift is a separate issue from contract law" I'm not sure why you think i'm talking about a non-contract law issue There are many issues with gifts, some in real estate, some in torts, and some in contract law. Plenty of jurisdictions allow disguised gifts (the classic example being nominal consideration, such as $1 for property) to be looked behind, and because they classify the consideration as a gift rather than anything real, do not form a valid contract. That does not mean it occurs in all cases, or that there aren't jurisdictions where i can have a legally binding agreement to buy a house for a dollar (there are plenty) However, if you don't believe this is a valid issue in the theory of contract formation, i'm not sure what to tell you. Maybe this helps? Restatement (second) of contracts §71. REQUIREMENT OF EXCHANGE; TYPES OF EXCHANGE ... b. "Bargained for." ... Moreover, a mere pretense of bargain does not suffice, as where there is a false recital of consideration or where the purported consideration is merely nominal. In such cases there is no consideration and the promise is enforced, if at all, as a promise binding without consideration under §§82- 94 There are plenty of jurisdictions that follow the restatement view. Would it make you feel better if I changed the example to sell ing a car to a relative for $1? Or do you think this is also a legally enforceable contract in all jurisdictions? (It's not, it would be enforceable in the 'still completely common law' jurisdictions, but not in the 'we take the restatement view' jurisdictions) I do agree there are separate issues as to whether it is specifically legal to convey real estate in certain situations, but this is completely separate from the general theory of whether you can form a valid contract this way. Even that is different than the question of whether you could get anything, even if the contract was unenforceable (IE some kind of quasi-contract recovery). However, this is all pretty useless pedantry (though i'm happy to argue about it, since lawyering is fun). I used an example that is legally correct in plenty of jurisdictions to make a point, and the complaint seems to be not about the point I made (that it's not a sham), but about the specific example, and in this case, like everything else, it depends on the jurisdiction. I could have written a completely legally accurate comment (at least for the US) by adding another few sentences that describe the possible outcomes in all jurisdictions, but it would not be very effective writing :)
- snowwrestler 14y ago
  I think it's a bit hasty to call this stuff the "exact requirements of the law." It's not like they are following a precise recipe laid out in the Federal Register. They are attempting to apply a precedent in a novel way. It's obviously not exactly settled, or the court would not be hearing the case. The whole point of the appellate ruling is to decide whether in fact they are adequately complying with the law. As a non-lawyer, my smell test is violated by how needlessly complicated the technical approach is, to produce a fairly simple result. It would be like saying there's an exception to "no trespassing" if you do a very particular, complex dance before entering the property.
  - 205guy 14y ago
    Both you and the dissenting judge seem to take issue with the complexity of the technical approach. That does not seem like a legal argument. I understand that if someone goes to great lengths to do something illegal, say hide their transactions and funds with multiple offshore accounts to avoid paying taxes, it can be a legal argument (it's proof of knowing and evading). But in this case, the goal is something legal: a consumer setting up a private antenna, connecting it to a private DVR and watching it over the internet. Aereo figured there would be a market demand, so they figured out a way to do it economically for a lot of people at the same time. [In fact, I wonder if Aereo is patenting their antenna array and general setup. It's clearly a highly complex innovation.] Actually, there is an exception to tresspassing: the complex dance involves getting certified as a pilot and using an airplane--and staying a certain level above ground. Here's another exception: some jurisdictions allow native populations access to land regardless of private ownership (though ancestry is less generalizable). Medical marijuana might be more similar: it's generally illegal, except for certain illness, so all of a sudden, a lot of people are getting diagnosed (with certain doctors and dispensaries gaining). My point is, all these models of interaction (real property, media copyright, and consumer rights) have loopholes of various degrees, or rather overlaps in what is allowed and what is gained (access vs. property rights, entertainment vs. commercials). Essentially, the market is still maturing. The model of over-the-air TV with commercials is not the end-all-be-all of consumer entertainment. Other models are being developed at its expense, reshaping the legal and economical landscape as they go, and of course the established players user their clout to hang on as long as possible. Actually, HBO is evolving. It was already cable-only in response to the shifting of these winds decades ago. Now it is releasing series (Game of Thrones) on its own terms. You see people who say "take my money, just let me download it." But having avoided the gray areas such as over-the-air broadcasting, it is in a position of power. It knows people want the series, that desire creates value, and it is in a position to reap that value. Sure there is torrenting, but from a copyright position, violaters are defintely in the wrong. As a result, I wonder if this ruling will eventually lead to the end of over-the-air TV transmission. And in the short term, it wouldn't surprise me if Aereo's facility suddenly had very poor reception due to some antenna misalignments at their local transmitter.
- noonespecial 14y ago
  As a non-lawyer the whole affair just makes me completely lose respect for the law and want to fire up bittorrent. If you will: "No offence guys, go right ahead and argue about how many angels can dance on that particular pin-head, I'll be over here watching Game of Thrones on "AllMyVideos.net". It feels like they're making game out of it instead of rationally addressing the issue.
  - GHFigs 14y ago
    Correct me if I'm wrong, but Game of Thrones isn't broadcast over the air.
    - rayiner 14y ago
      He just likes getting shit for free.
    - noonespecial 14y ago
      Its hyperbole. Game of Thrones is an HBO show and is not free, or broadcast outside private cable. The point is, if it doesn't matter, then people are just going to do whatever. The "over the air" stuff is ostensibly free, but if "the powers" are going to dick around with "free" like this even though its perfectly clear to everyman its silly, then why take any of it seriously? That's what I mean when I say people will lose respect. If free was free and pay was pay and it was clear what was what, people might get behind it. This nonsense is just going to make people bittorrent and push meaningful solutions that much further down the road.
      - Dylan16807 14y ago
        If all you care about is price hook up your own antenna and don't purchase aereo's service.
guimarin 14y ago
A common complaint among technologists will be that it's a waste of resources to keep multiple copies of the same 'recording'. I don't dispute that. However, thankfully there seems to be an upper bound to the size of a recording, and as storage gets cheaper and cheaper, this will be less of an issue. [Note: Even though video resolutions will get better, like audio did, eventually I imagine will hit a similar upper bound. ]
mmanfrin 14y ago
It is absurd that they have to keep thousands of copies of the exact same data because laws are skeuomorphic.
- deleted 14y ago
  [deleted]
- AjithAntony 14y ago
  What if they had thousands of logical copies, but implemented a de-duplicated storage back-end.
  - peeters 14y ago
    Good point. Even adding a caching layer would turn the storage into largely write-only devices. Would adding that caching make it illegal?
    - jrockway 14y ago
      IMHO, no. Once this ruling is through all the appeals, it's likely that they'll be able to do whatever they want. It's not like NBC can come in to your house to inspect your antenna. Similarly, it's unlikely that they'll be allowed to inspect this company's filesystem's algorithms. (Remember, disks do not write 1:1 what you tell them to write. If the disk's abstraction over the spinning magnetic platters is acceptable, I doubt the law could find a distinction when using hard links instead of identical files.)
      - nitrogen 14y ago
        Didn't courts already find a distinction between deduplication and storing identical copies of files in the semi-recent remote DVR case?
  - MBCook 14y ago
    That came up in one of the court cases, I think the 'in the cloud DVR' service a small cable company made. I think it was ruled to be fair to keep it de-duplicated, but I'm not sure.
GhotiFish 14y ago
Good parody is one where you can't tell if it's real or fake. On this day of days, I'm undecided. Otherwise I'd believe it.
- mark-r 14y ago
  No, not parody. They've been discussed here on HN many times before, here's just one example: https://news.ycombinator.com/item?id=4454852 https://news.ycombinator.com/item?id=4454852
short_circut 14y ago
I love the amount of creative lawyering that happened here.
- jpdoctor 14y ago
  And the creative engineering in order to beat the letter of the law (but what a waste of time and resources...)
chrischen 14y ago
They are forcing businesses to treat digital bits as if they are physical objects... unless of course I'm a consumer who pays for the digital bits, in which case I'm now just licensing it. How convenient... for their profits.
- thatthatis 14y ago
  The premise of your objection is that copyright law is anything but a game of "i win" played by content owners (ref Adam Sandler's film Big Daddy - http://youtu.be/8HUvTp8ZcJs?t=8s http://youtu.be/8HUvTp8ZcJs?t=8s)
- chrischen 14y ago
  And if I am a consumer who licenses the DVD I just bought, I for some reason now have to re-buy the license or whatever when it gets released in a new physical format, or through a new medium.
MikeKusold 14y ago
I've read the NYT article instead ( http://www.nytimes.com/2013/04/02/business/media/aereo-wins-in-appeals-court-setting-stage-for-trial-on-streaming-broadcast-tv.html?smid=tw-share http://www.nytimes.com/2013/04/02/business/media/aereo-wins-... ), but the following excerpt really rubbed me wrong: A group of other broadcasters, including Fox and PBS, said they intended to move toward a trial. “Today’s decision is a loss for the entire creative community,” the group said in a statement. “The court has ruled that it is O.K. to steal copyrighted material and retransmit it without compensation. While we are disappointed with this decision, we have and are considering our options to protect our programming.” Why is PBS fighting this? They are subsidized from the government with the goal of providing educational television to every one. If anything, PBS should think this is a great idea. More viewers mean more potential donors during phonathons.
- ajross 14y ago
  PBS sells their content for revenue just like everyone else does. It's true their financials are more complicated, but their motivations really aren't any different. That is, until someone starts a popular campaign of withholding pledges until PBS/CPB adopts a more progressive copyright policy.
- ripter 14y ago
  I'm not clear how you can steal something that is over the air.
  - njharman 14y ago
    Easy, all It takes decades of lobbyists crafting ever more lengthily, ever more broad, and ever more draconian Copyright legislation.
    - GHFigs 14y ago
      Are you saying that over-the-air broadcasts were not initially covered by copyright?
pkamb 14y ago
I remember a service that put a physical DVD in an individual DVD player in a warehouse somewhere and streamed it to you. Essentially the same thing as this? Looks like it was shut down. http://arstechnica.com/tech-policy/2011/08/judge-orders-shutdown-of-dvd-streaming-service-zediva/ http://arstechnica.com/tech-policy/2011/08/judge-orders-shut...
- crazygringo 14y ago
  At first glance, it does seem like essentially the same thing. I wonder if it makes any difference, the fact that broadcasting is putting out a signal for "free" to everyone in the first place, whereas the DVD's must be purchased in the first place -- so that they never started as anything public, unlike TV.
  - cdash 14y ago
    Could they sell you the DVD while you are streaming it and then they buy it back when the stream is done. This could all be done automatically.
    - wmf 14y ago
      Just call it a rental; after all, renting DVDs is legal. But precedent has shown that it's not necessarily legal to outsource something that would be legal for you to do yourself.
      - chii 14y ago
        that jsut blows my mind. This means laws are inconsistent, and thus illogical. can you name another instance that this is true?
    - aaronblohowiak 14y ago
      Sales tax.
- Guvante 14y ago
  > Judge Walter also seemed unimpressed by Zediva's argument against an injunction. "Defendants claim, without any evidence, that an injunction would significantly harm, if not destroy, their business," he wrote. He ruled that the harm to movie studios from lost revenues outweighed any hardship Zediva faced. That is ridiculous. "You are right, it would destroy your business, but it might hurt their bottom line a little bit".
marssaxman 14y ago
It's a silly, wasteful workaround to a silly, wasteful law. Go technologists! Get with the future, lawyers - it's already turned into the present!
baddox 14y ago
Not The Onion. This is really how ridiculous copyright law is.
caf 14y ago
I think they should probably be able to get away without individual antennas, too - as long as they still have individual tuners. After all, there's plenty of apartment buildings where everyone shares a single antenna, and those aren't considered an infringement of the public performance right.
meisterbrendan 14y ago
I find it very sad that in the 21st century Americans... still consume raisins. Gross.
deleted 14y ago
[deleted]
cmbaus 14y ago
Wait, this isn't an April Fool's joke?
xur17 14y ago
"And like Cablevision, when 1000 users record the same program, Aereo creates 1,000 redundant copies." I'm curious if they use some sort of filesystem that splits files into chunks, and stores similar chucks once, similar to what Dropbox does. Would this could as storing 1,000 redundant copies if the de-duplication is done at the file system level? edit: After reading further, it appears that they do store duplicate copies of the file. I am curious how this type of de-duplication would work with the law.
gpvos 14y ago
Copyright, you so crazy.

235 points by yk 14y ago

The dissent on this bothers me as a lawyer. It basically says the whole thing is a sham to use a perceived "loophole in the law". IE By complying with the exact requirements of the law, they are committing a sham. It's a policy argument, not a legal one. A sham is doing something like "i'll sell my brother my house for $1". That's a sham. You are doing something to try to trivially comply with contracts law (which requires adequate consideration), but the $1 you are giving is really trying to cover up the fact that it's really a gift. But that's not the argument the dissent makes, the argument it makes is "i don't like this behavior, so i will villify it" and act like it's a sham. The law imposes plenty of technical barriers to doing things. I could make an amazing wireless system if i could use whatever transmitter power i liked, but the law prevents me. The fact that they could use one large antenna is exactly right, but it changes nothing, because the law appears to prevents them from doing so. Following the technical requirements of FCC law is not a sham, it's "what the law requires you do". Following the technical requirements of copyright law is not a sham, it's "what the law requires you do".

jes5199 14y ago
can you explain what the legal mechanism is that makes a $1 house sale illegal? I don't understand how it's different.
- ChuckMcM 14y ago
  Its not illegal, its a "sham" (which is to say the house is worth much more than $1 and the sale has an ulterior motive). Similarly car sales where the car costs $1 but the "handling" charge is $15,000. The sham is that you pay sales tax on the sale price (that was fixed by paying sales tax on the blue book price but I digress).
  - rorrr 14y ago
    Sham isn't illegal. I don't understand your complaint. So they used the law in a creative way. Good for them.
- danielweber 14y ago
  Perhaps not "illegal," but it would nearly always be done in an attempt to bypass taxes. "I sold it to Joe for $1, I have no income tax to report, ha ha!"
  - guan 14y ago
    In fact, if the seller paid more than $1 for the house, he can take a nice deduction for the “loss.” In this example, in the US, it will be obvious to the IRS that the transaction is not arms-length, and they might levy gift tax on the fair market value of the house. They already thought of this loophole. There are, in fact, situations where the law is written to look more at intent than technicalities, for example in many areas of US immigration law, or generally in tax law when determining where a person’s residence is. That’s not always a good idea either because it leaves a lot of discretion for government officials and creates uncertainty about what the law is. An uncynical observer of the political system would say that the legislature has already thought of this: they’ve made the law very technical in areas where they want it to be, and less so in other areas.
  - joonix 14y ago
    You're mixing up contract law and IRS regulations. The $1 sale is a valid contract, but somebody will likely pay taxes on it, probably the recipient since he received a house at below fair value, which can be considered income.
    - DannyBee 14y ago
      The $1 sale may not be a valid contract, actually, it depends on the state, and whether they are still completely common law or not. Basically, under the restatement views, nominal consideration = no consideration under common law views, nominal consideration = consideration.
ChuckMcM 14y ago
I think its useful as an exercise to point out the challenges in Copyright law. Using 22nm MEMs technology I could imagine that I can get 1,000,000 antennas on a die which are clearly articulated when viewed in an electron microscope. Then I can sell these chips for $10,000 each to companies that want to use this "loophole".
- fnordfnordfnord 14y ago
  Well, maybe, but not if the antennas need to be functional. To be functional there are physical laws that must be obeyed.
rayiner 14y ago
As a lawyer, it was the majority's approach that bothered me. Simply, this hyper-technical approach makes for bad law. The court would've been better served here just saying it was fair use because the ads were preserved and the streams contained content that could be watched for free over the air anyway. Throw in the additional public consideration in this case, which is that the content owners are taking advantage of public airwaves to air this content in the first place, and the need to perpetuate this bizarre loophole disappears. The problem here is: what does "public performance" mean in the context of internet broadcasts? Cablevision just covers that consideration with mud. The answer is probably: the distinction of "public performance" is completely meaningless when talking about internet streams.
- jackalope 14y ago
  "...it was fair use because the ads were preserved..." Since when does fair use require the preservation of ads or any specific portion of the content? Your argument dilutes the meaning and intent of fair use. Even the matter of being free or not has no bearing. The majority wisely avoided this area and fundamentally upheld the fair use rights of the users. The dissenting opinion confuses the issue by discussing licensing agreements, even going so far as to suggest fair use is somehow illegal.
  - DannyBee 14y ago
    "Since when does fair use require the preservation of ads or any specific portion of the content? " When "the effect of the use upon the potential market for or value of the copyrighted work." became a factor that must be considered in fair use? While the 4 factors were not meant to be all-inclusive, there's a great law review article that shows that something like 99% of court decisions only ever consider those factors
- deleted 14y ago
  [deleted]
- kyllo 14y ago
  We're going to have bad law that treats bits as physical objects, hyper-technical workarounds and loopholes until we, as voters, confront the reality that content providers are now "charging for smells," and force Congress to do something about it. http://www.paulgraham.com/property.html http://www.paulgraham.com/property.html
joonix 14y ago
Contract law doesn't require adequate consideration.
- tokenadult 14y ago
  Contract law DOES require "consideration" to form a contract, but consideration indicates dickering (negotiation) more than it indicates a set amount of money. (Yes, I am a lawyer too.) The dollar amount needed to distinguish a real estate conveyance that is a bona fide sale from one that is a gift is a separate issue from contract law, so I empathize with your disagreement with the grandparent comment.
  - DannyBee 14y ago
    "The dollar amount needed to distinguish a real estate conveyance that is a bona fide sale from one that is a gift is a separate issue from contract law" I'm not sure why you think i'm talking about a non-contract law issue There are many issues with gifts, some in real estate, some in torts, and some in contract law. Plenty of jurisdictions allow disguised gifts (the classic example being nominal consideration, such as $1 for property) to be looked behind, and because they classify the consideration as a gift rather than anything real, do not form a valid contract. That does not mean it occurs in all cases, or that there aren't jurisdictions where i can have a legally binding agreement to buy a house for a dollar (there are plenty) However, if you don't believe this is a valid issue in the theory of contract formation, i'm not sure what to tell you. Maybe this helps? Restatement (second) of contracts §71. REQUIREMENT OF EXCHANGE; TYPES OF EXCHANGE ... b. "Bargained for." ... Moreover, a mere pretense of bargain does not suffice, as where there is a false recital of consideration or where the purported consideration is merely nominal. In such cases there is no consideration and the promise is enforced, if at all, as a promise binding without consideration under §§82- 94 There are plenty of jurisdictions that follow the restatement view. Would it make you feel better if I changed the example to sell ing a car to a relative for $1? Or do you think this is also a legally enforceable contract in all jurisdictions? (It's not, it would be enforceable in the 'still completely common law' jurisdictions, but not in the 'we take the restatement view' jurisdictions) I do agree there are separate issues as to whether it is specifically legal to convey real estate in certain situations, but this is completely separate from the general theory of whether you can form a valid contract this way. Even that is different than the question of whether you could get anything, even if the contract was unenforceable (IE some kind of quasi-contract recovery). However, this is all pretty useless pedantry (though i'm happy to argue about it, since lawyering is fun). I used an example that is legally correct in plenty of jurisdictions to make a point, and the complaint seems to be not about the point I made (that it's not a sham), but about the specific example, and in this case, like everything else, it depends on the jurisdiction. I could have written a completely legally accurate comment (at least for the US) by adding another few sentences that describe the possible outcomes in all jurisdictions, but it would not be very effective writing :)
snowwrestler 14y ago
I think it's a bit hasty to call this stuff the "exact requirements of the law." It's not like they are following a precise recipe laid out in the Federal Register. They are attempting to apply a precedent in a novel way. It's obviously not exactly settled, or the court would not be hearing the case. The whole point of the appellate ruling is to decide whether in fact they are adequately complying with the law. As a non-lawyer, my smell test is violated by how needlessly complicated the technical approach is, to produce a fairly simple result. It would be like saying there's an exception to "no trespassing" if you do a very particular, complex dance before entering the property.
- 205guy 14y ago
  Both you and the dissenting judge seem to take issue with the complexity of the technical approach. That does not seem like a legal argument. I understand that if someone goes to great lengths to do something illegal, say hide their transactions and funds with multiple offshore accounts to avoid paying taxes, it can be a legal argument (it's proof of knowing and evading). But in this case, the goal is something legal: a consumer setting up a private antenna, connecting it to a private DVR and watching it over the internet. Aereo figured there would be a market demand, so they figured out a way to do it economically for a lot of people at the same time. [In fact, I wonder if Aereo is patenting their antenna array and general setup. It's clearly a highly complex innovation.] Actually, there is an exception to tresspassing: the complex dance involves getting certified as a pilot and using an airplane--and staying a certain level above ground. Here's another exception: some jurisdictions allow native populations access to land regardless of private ownership (though ancestry is less generalizable). Medical marijuana might be more similar: it's generally illegal, except for certain illness, so all of a sudden, a lot of people are getting diagnosed (with certain doctors and dispensaries gaining). My point is, all these models of interaction (real property, media copyright, and consumer rights) have loopholes of various degrees, or rather overlaps in what is allowed and what is gained (access vs. property rights, entertainment vs. commercials). Essentially, the market is still maturing. The model of over-the-air TV with commercials is not the end-all-be-all of consumer entertainment. Other models are being developed at its expense, reshaping the legal and economical landscape as they go, and of course the established players user their clout to hang on as long as possible. Actually, HBO is evolving. It was already cable-only in response to the shifting of these winds decades ago. Now it is releasing series (Game of Thrones) on its own terms. You see people who say "take my money, just let me download it." But having avoided the gray areas such as over-the-air broadcasting, it is in a position of power. It knows people want the series, that desire creates value, and it is in a position to reap that value. Sure there is torrenting, but from a copyright position, violaters are defintely in the wrong. As a result, I wonder if this ruling will eventually lead to the end of over-the-air TV transmission. And in the short term, it wouldn't surprise me if Aereo's facility suddenly had very poor reception due to some antenna misalignments at their local transmitter.
noonespecial 14y ago
As a non-lawyer the whole affair just makes me completely lose respect for the law and want to fire up bittorrent. If you will: "No offence guys, go right ahead and argue about how many angels can dance on that particular pin-head, I'll be over here watching Game of Thrones on "AllMyVideos.net". It feels like they're making game out of it instead of rationally addressing the issue.
- GHFigs 14y ago
  Correct me if I'm wrong, but Game of Thrones isn't broadcast over the air.
  - rayiner 14y ago
    He just likes getting shit for free.
  - noonespecial 14y ago
    Its hyperbole. Game of Thrones is an HBO show and is not free, or broadcast outside private cable. The point is, if it doesn't matter, then people are just going to do whatever. The "over the air" stuff is ostensibly free, but if "the powers" are going to dick around with "free" like this even though its perfectly clear to everyman its silly, then why take any of it seriously? That's what I mean when I say people will lose respect. If free was free and pay was pay and it was clear what was what, people might get behind it. This nonsense is just going to make people bittorrent and push meaningful solutions that much further down the road.
    - Dylan16807 14y ago
      If all you care about is price hook up your own antenna and don't purchase aereo's service.

guimarin 14y ago

A common complaint among technologists will be that it's a waste of resources to keep multiple copies of the same 'recording'. I don't dispute that. However, thankfully there seems to be an upper bound to the size of a recording, and as storage gets cheaper and cheaper, this will be less of an issue. [Note: Even though video resolutions will get better, like audio did, eventually I imagine will hit a similar upper bound. ]

mmanfrin 14y ago

It is absurd that they have to keep thousands of copies of the exact same data because laws are skeuomorphic.

deleted 14y ago
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AjithAntony 14y ago
What if they had thousands of logical copies, but implemented a de-duplicated storage back-end.
- peeters 14y ago
  Good point. Even adding a caching layer would turn the storage into largely write-only devices. Would adding that caching make it illegal?
  - jrockway 14y ago
    IMHO, no. Once this ruling is through all the appeals, it's likely that they'll be able to do whatever they want. It's not like NBC can come in to your house to inspect your antenna. Similarly, it's unlikely that they'll be allowed to inspect this company's filesystem's algorithms. (Remember, disks do not write 1:1 what you tell them to write. If the disk's abstraction over the spinning magnetic platters is acceptable, I doubt the law could find a distinction when using hard links instead of identical files.)
    - nitrogen 14y ago
      Didn't courts already find a distinction between deduplication and storing identical copies of files in the semi-recent remote DVR case?
- MBCook 14y ago
  That came up in one of the court cases, I think the 'in the cloud DVR' service a small cable company made. I think it was ruled to be fair to keep it de-duplicated, but I'm not sure.

GhotiFish 14y ago

Good parody is one where you can't tell if it's real or fake. On this day of days, I'm undecided. Otherwise I'd believe it.

mark-r 14y ago
No, not parody. They've been discussed here on HN many times before, here's just one example: https://news.ycombinator.com/item?id=4454852 https://news.ycombinator.com/item?id=4454852

short_circut 14y ago

I love the amount of creative lawyering that happened here.

jpdoctor 14y ago
And the creative engineering in order to beat the letter of the law (but what a waste of time and resources...)

chrischen 14y ago

They are forcing businesses to treat digital bits as if they are physical objects... unless of course I'm a consumer who pays for the digital bits, in which case I'm now just licensing it. How convenient... for their profits.

thatthatis 14y ago
The premise of your objection is that copyright law is anything but a game of "i win" played by content owners (ref Adam Sandler's film Big Daddy - http://youtu.be/8HUvTp8ZcJs?t=8s http://youtu.be/8HUvTp8ZcJs?t=8s)
chrischen 14y ago
And if I am a consumer who licenses the DVD I just bought, I for some reason now have to re-buy the license or whatever when it gets released in a new physical format, or through a new medium.

MikeKusold 14y ago

I've read the NYT article instead ( http://www.nytimes.com/2013/04/02/business/media/aereo-wins-in-appeals-court-setting-stage-for-trial-on-streaming-broadcast-tv.html?smid=tw-share http://www.nytimes.com/2013/04/02/business/media/aereo-wins-... ), but the following excerpt really rubbed me wrong: A group of other broadcasters, including Fox and PBS, said they intended to move toward a trial. “Today’s decision is a loss for the entire creative community,” the group said in a statement. “The court has ruled that it is O.K. to steal copyrighted material and retransmit it without compensation. While we are disappointed with this decision, we have and are considering our options to protect our programming.” Why is PBS fighting this? They are subsidized from the government with the goal of providing educational television to every one. If anything, PBS should think this is a great idea. More viewers mean more potential donors during phonathons.

ajross 14y ago
PBS sells their content for revenue just like everyone else does. It's true their financials are more complicated, but their motivations really aren't any different. That is, until someone starts a popular campaign of withholding pledges until PBS/CPB adopts a more progressive copyright policy.
ripter 14y ago
I'm not clear how you can steal something that is over the air.
- njharman 14y ago
  Easy, all It takes decades of lobbyists crafting ever more lengthily, ever more broad, and ever more draconian Copyright legislation.
  - GHFigs 14y ago
    Are you saying that over-the-air broadcasts were not initially covered by copyright?

pkamb 14y ago

I remember a service that put a physical DVD in an individual DVD player in a warehouse somewhere and streamed it to you. Essentially the same thing as this? Looks like it was shut down. http://arstechnica.com/tech-policy/2011/08/judge-orders-shutdown-of-dvd-streaming-service-zediva/ http://arstechnica.com/tech-policy/2011/08/judge-orders-shut...

crazygringo 14y ago
At first glance, it does seem like essentially the same thing. I wonder if it makes any difference, the fact that broadcasting is putting out a signal for "free" to everyone in the first place, whereas the DVD's must be purchased in the first place -- so that they never started as anything public, unlike TV.
- cdash 14y ago
  Could they sell you the DVD while you are streaming it and then they buy it back when the stream is done. This could all be done automatically.
  - wmf 14y ago
    Just call it a rental; after all, renting DVDs is legal. But precedent has shown that it's not necessarily legal to outsource something that would be legal for you to do yourself.
    - chii 14y ago
      that jsut blows my mind. This means laws are inconsistent, and thus illogical. can you name another instance that this is true?
  - aaronblohowiak 14y ago
    Sales tax.
Guvante 14y ago
> Judge Walter also seemed unimpressed by Zediva's argument against an injunction. "Defendants claim, without any evidence, that an injunction would significantly harm, if not destroy, their business," he wrote. He ruled that the harm to movie studios from lost revenues outweighed any hardship Zediva faced. That is ridiculous. "You are right, it would destroy your business, but it might hurt their bottom line a little bit".

marssaxman 14y ago

It's a silly, wasteful workaround to a silly, wasteful law. Go technologists! Get with the future, lawyers - it's already turned into the present!

baddox 14y ago

Not The Onion. This is really how ridiculous copyright law is.

caf 14y ago

I think they should probably be able to get away without individual antennas, too - as long as they still have individual tuners. After all, there's plenty of apartment buildings where everyone shares a single antenna, and those aren't considered an infringement of the public performance right.

meisterbrendan 14y ago

I find it very sad that in the 21st century Americans... still consume raisins. Gross.

deleted 14y ago

[deleted]

cmbaus 14y ago

Wait, this isn't an April Fool's joke?

xur17 14y ago

"And like Cablevision, when 1000 users record the same program, Aereo creates 1,000 redundant copies." I'm curious if they use some sort of filesystem that splits files into chunks, and stores similar chucks once, similar to what Dropbox does. Would this could as storing 1,000 redundant copies if the de-duplication is done at the file system level? edit: After reading further, it appears that they do store duplicate copies of the file. I am curious how this type of de-duplication would work with the law.

gpvos 14y ago