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I don't trust the Supreme Court to produce a proper ruling on this one. I assume Aereo will lose. That said, I don't see how it could be argued that Aereo is

by jaynos 13y ago

I don't trust the Supreme Court to produce a proper ruling on this one. I assume Aereo will lose. That said, I don't see how it could be argued that Aereo is breaking any law.

mbreese 13y ago
Given that that Aereo business model was taken directly from a Supreme Court ruling, I think that they should have a strong argument. With the broadcasters going to different circuit courts with cases, this might be done to deal with having different rulings in lower courts. This should probably seen as a good thing for Aereo that it is their case that is being heard vs another (shakier) business model.
- matthewmcg 13y ago
  It is more accurate to say their business is based on a Supreme Court ruling and an appeals court ruling. PART of the business model comes from a Supreme Court ruling (the Sony Betamax case) that permitted home recordings as fair use. The other part is based on a Second Circuit case (Cablevision) that authorized remote DVR service. There is a circuit split on several elements in the Cablevision holding so it is quite possible the Supreme Court could rule against Aereo.
  - mbreese 13y ago
    Yep... you're right. I had forgotten that the Supremes had just let the Cablevision Second Circuit case stand and didn't rule on it themselves. Wasn't their another remote DVR case though that they ruled on that had de-duplicated the data for multiple users? The difference in the Cablevision remote DVR being that they didn't de-duplicate data.
jonknee 13y ago
Aereo has done well in court so far, I don't think this will be too much different. They have common sense on their side, no technical knowledge needed (everyone on the court will know about TV antennas).
rayiner 13y ago
1) Why don't you trust them? I've personally never read a Supreme Court ruling that got the technology angle fundamentally wrong, though I have seen a number where the Supreme Court's principles are at odds with certain values and beliefs often held by technologists. 2) What's so defensible about a business model that is based entirely on taking advantage of someone else's product? Without the content produced by the networks, there would be absolutely no reason for Aereo to exist. I think Aereo will win, because the precedent is on its side. However, I also think the company is just taking advantage of a loophole and should try actually producing content people want to watch instead of simply taking some other company's content for free.
- gergles 13y ago
  I have never understood the concept of "taking content for free" and the implied judgment about doing so, with regards to 'retransmission consent'. If you run an organization that broadcasts content to anybody with an antenna, you should not be shocked, just shocked when somebody picks it up and uses it as they see fit. If you don't want that to happen, don't broadcast your content and don't abuse the public spectrum to try to still exact control over the use of your broadcasted content.
  - rayiner 13y ago
    Just because you agree to do N doesn't mean you agree to do N+1 or N+2, etc. The networks do broadcast content, that's very expensive to produce, for free, in return for use of the public spectrum. That's the bargain. But the bargain doesn't mean that they agree to let other people do whatever "they see fit" with the broadcasted content. One part of that bargain, embodied in the copyright rules, is that you can't take the broadcast video and perform it publicly. I.e. I can't tape NBC shows and then open up a movie theater playing them. That's not part of the bundle of rights NBC agreed to give up in the process of broadcasting the show over the air. All Aereo does is take advantage of a loophole. They couldn't record the shows and stream them, because that would violate the networks' copyright. So they try to shoehorn effectively the same service into the exception for time-shifting.
ori_b 13y ago
If using one antenna to capture and retransmit a show is not legal, and it isn't (or Aereo would simply do that) I don't see how using more private, leased antennas to retransmit a show is anything but a blatant violation of the spirit of the law. While I think the law making this distinction is silly, and the law is dumb and needs to be changed, I don't see Aereo's workaround as something that fits within that law.
- rayiner 13y ago
  It's not dumb. It captures the very common sense notion that there is a difference between playing a DVD for some friends at home (private performance), and setting up a movie theater with said DVD (public performance).
  - koenigdavidmj 13y ago
    Aereo is doing almost exactly what cable television once did, putting a radio receiver on one end of a cable and a bunch of customers on the other. (I assume that cable companies probably have direct physical links to local stations by now, but it's not relevant). The fact that their transmission medium is the web rather than coax seems inconsequential to me. That seems to fall on the `movie theater' end of the dichotomy, but it's legal.
    - rayiner 13y ago
      Yes, and in 1992 the law was changed to require cable companies to get retransmission consent in order to engage in that practice (usually by paying fees).
    - jamesaguilar 13y ago
      "a bunch of customers" A single customer. One radio receiver per customer if I understand their model correctly.
    - triptychs 13y ago
      > Aereo is doing almost exactly what cable television once did, putting a radio receiver on one end of a cable and a bunch of customers on the other. No, Aereo is putting a radio receiver on one end and one customer on the other. Each customer has their own antenna. It's exactly the same as having an antenna on your home TV, only you're renting the antenna and it comes with a DVR.
isamuel 13y ago
If you're actually curious about what the argument is, the broadcasters' petition for Supreme Court review lays it out: http://online.wsj.com/public/resources/documents/Aereo102813.pdf http://online.wsj.com/public/resources/documents/Aereo102813...
- VladRussian2 13y ago
  the broadcasters says "Aereo retransmits". If Aereo were doing retransmission, even using individual antenna per customer, it would still be a public performance (Zediva case comes to mind here), and thus broadcasters would have a case. If Aereo only rents the antenna to customer, it is the customer who is doing broadcast capture and retransmission using the rented equipment - seems to be a well established legal activity (i'm wondering why such an argument didn't work for Zediva, though i don't think they "rented" DVD player to customer, only DVD itself - they were arguing that they can do anything like Netflix or Blockbuster, only by way of online streaming instead of physical transfer of the DVD, so it seems they didn't argue that it is customer who plays and streams rented DVD on rented equipment).
Natsu 13y ago
While it's true that the Supreme Court often grants cert to overturn cases, I'm not so sure they'll come down on the wrong side of this. I don't have a lot to base this on, but I would prefer to give them the benefit of the doubt for now.

by jaynos 13y ago

I don't trust the Supreme Court to produce a proper ruling on this one. I assume Aereo will lose. That said, I don't see how it could be argued that Aereo is breaking any law.

mbreese 13y ago

Given that that Aereo business model was taken directly from a Supreme Court ruling, I think that they should have a strong argument. With the broadcasters going to different circuit courts with cases, this might be done to deal with having different rulings in lower courts. This should probably seen as a good thing for Aereo that it is their case that is being heard vs another (shakier) business model.

matthewmcg 13y ago
It is more accurate to say their business is based on a Supreme Court ruling and an appeals court ruling. PART of the business model comes from a Supreme Court ruling (the Sony Betamax case) that permitted home recordings as fair use. The other part is based on a Second Circuit case (Cablevision) that authorized remote DVR service. There is a circuit split on several elements in the Cablevision holding so it is quite possible the Supreme Court could rule against Aereo.
- mbreese 13y ago
  Yep... you're right. I had forgotten that the Supremes had just let the Cablevision Second Circuit case stand and didn't rule on it themselves. Wasn't their another remote DVR case though that they ruled on that had de-duplicated the data for multiple users? The difference in the Cablevision remote DVR being that they didn't de-duplicate data.

jonknee 13y ago

Aereo has done well in court so far, I don't think this will be too much different. They have common sense on their side, no technical knowledge needed (everyone on the court will know about TV antennas).

rayiner 13y ago

1) Why don't you trust them? I've personally never read a Supreme Court ruling that got the technology angle fundamentally wrong, though I have seen a number where the Supreme Court's principles are at odds with certain values and beliefs often held by technologists. 2) What's so defensible about a business model that is based entirely on taking advantage of someone else's product? Without the content produced by the networks, there would be absolutely no reason for Aereo to exist. I think Aereo will win, because the precedent is on its side. However, I also think the company is just taking advantage of a loophole and should try actually producing content people want to watch instead of simply taking some other company's content for free.

gergles 13y ago
I have never understood the concept of "taking content for free" and the implied judgment about doing so, with regards to 'retransmission consent'. If you run an organization that broadcasts content to anybody with an antenna, you should not be shocked, just shocked when somebody picks it up and uses it as they see fit. If you don't want that to happen, don't broadcast your content and don't abuse the public spectrum to try to still exact control over the use of your broadcasted content.
- rayiner 13y ago
  Just because you agree to do N doesn't mean you agree to do N+1 or N+2, etc. The networks do broadcast content, that's very expensive to produce, for free, in return for use of the public spectrum. That's the bargain. But the bargain doesn't mean that they agree to let other people do whatever "they see fit" with the broadcasted content. One part of that bargain, embodied in the copyright rules, is that you can't take the broadcast video and perform it publicly. I.e. I can't tape NBC shows and then open up a movie theater playing them. That's not part of the bundle of rights NBC agreed to give up in the process of broadcasting the show over the air. All Aereo does is take advantage of a loophole. They couldn't record the shows and stream them, because that would violate the networks' copyright. So they try to shoehorn effectively the same service into the exception for time-shifting.

ori_b 13y ago

If using one antenna to capture and retransmit a show is not legal, and it isn't (or Aereo would simply do that) I don't see how using more private, leased antennas to retransmit a show is anything but a blatant violation of the spirit of the law. While I think the law making this distinction is silly, and the law is dumb and needs to be changed, I don't see Aereo's workaround as something that fits within that law.

rayiner 13y ago
It's not dumb. It captures the very common sense notion that there is a difference between playing a DVD for some friends at home (private performance), and setting up a movie theater with said DVD (public performance).
- koenigdavidmj 13y ago
  Aereo is doing almost exactly what cable television once did, putting a radio receiver on one end of a cable and a bunch of customers on the other. (I assume that cable companies probably have direct physical links to local stations by now, but it's not relevant). The fact that their transmission medium is the web rather than coax seems inconsequential to me. That seems to fall on the `movie theater' end of the dichotomy, but it's legal.
  - rayiner 13y ago
    Yes, and in 1992 the law was changed to require cable companies to get retransmission consent in order to engage in that practice (usually by paying fees).
  - jamesaguilar 13y ago
    "a bunch of customers" A single customer. One radio receiver per customer if I understand their model correctly.
  - triptychs 13y ago
    > Aereo is doing almost exactly what cable television once did, putting a radio receiver on one end of a cable and a bunch of customers on the other. No, Aereo is putting a radio receiver on one end and one customer on the other. Each customer has their own antenna. It's exactly the same as having an antenna on your home TV, only you're renting the antenna and it comes with a DVR.

isamuel 13y ago

If you're actually curious about what the argument is, the broadcasters' petition for Supreme Court review lays it out: http://online.wsj.com/public/resources/documents/Aereo102813.pdf http://online.wsj.com/public/resources/documents/Aereo102813...

VladRussian2 13y ago
the broadcasters says "Aereo retransmits". If Aereo were doing retransmission, even using individual antenna per customer, it would still be a public performance (Zediva case comes to mind here), and thus broadcasters would have a case. If Aereo only rents the antenna to customer, it is the customer who is doing broadcast capture and retransmission using the rented equipment - seems to be a well established legal activity (i'm wondering why such an argument didn't work for Zediva, though i don't think they "rented" DVD player to customer, only DVD itself - they were arguing that they can do anything like Netflix or Blockbuster, only by way of online streaming instead of physical transfer of the DVD, so it seems they didn't argue that it is customer who plays and streams rented DVD on rented equipment).

Natsu 13y ago

While it's true that the Supreme Court often grants cert to overturn cases, I'm not so sure they'll come down on the wrong side of this. I don't have a lot to base this on, but I would prefer to give them the benefit of the doubt for now.