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In the second legal battle that Aereo won back in 2012, the lone dissenting judge in the US Court of Appeals in NY had a scathing critique of Aereo's scheme. I'

In the second legal battle that Aereo won back in 2012, the lone dissenting judge in the US Court of Appeals in NY had a scathing critique of Aereo's scheme. I'm generally pro-Aereo, but I think HN readers might find this portion of Judge Denny Chin's dissent interesting: "Aereo’s “technology platform” is, however, a sham. The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law. After capturing the broadcast signal, Aereo makes a copy of the selected program for each viewer, whether the user chooses to “Watch” now or “Record” for later. Under Aereo’s theory, by using these individual antennas and copies, it may retransmit, for example, the Super Bowl “live” to 50,000 subscribers and yet, because each subscriber has an individual antenna and a “unique recorded copy” of the broadcast, these are “private” performances. Of course, the argument makes no sense. These are very much public performances." [1] [1] http://www.ca2.uscourts.gov/decisions/isysquery/620ea2ad-c6c8-4177-84e0-19e5ac2cdb50/1/doc/12-2786_12-2807_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/620ea2ad-c6c8-4177-84e0-19e5ac2cdb50/1/hilite/ http://www.ca2.uscourts.gov/decisions/isysquery/620ea2ad-c6c...

Natsu 13y ago
So then what are the rules they are to play by? "We'll make them up whenever we feel like it!" Certainly, this is a legal problem, but that to me indicates that it is their problem to fix, not Aereo's. If their judgements rest so heavily on the minutea of the tech backing this up, perhaps it is time to rethink these laws on more principled grounds than they have sofar been imagined....
- ewoodrich 13y ago
  You certainly make a good point, but I disagree with your conclusion. Ideally, a law is drafted as narrowly as possible. Otherwise, it is open to extremely broad interpretation and eventually becomes far removed from its original purpose ( the Computer Fraud and Abuse Act and RICO are examples of laws where this principle has not been followed). If a more "principled law" were to replace the current OTA rules, it would certainly be far more expansive to include all immediately foreseeable edge cases (Congress tends not to get excessively involved in the finer points of modern tech, partially due to awareness that incorrect jargon could result in a law becoming obsolete in a few years). The cited opinion does not rely on the minutea of the tech at all, the judge is using the technical description to illustrate how a complex technical scheme can be used to circumvent the intent of a law. And generally, judges do not look favorably on what they percieve to be "legal tricks", in this case, applying the unarguably legal example of private OTA viewing to a far more expansive scheme to act as a secondary provider of OTA streams without properly licensing them for redistribution. I'm sure that the law could be rewritten in a more "principled" way, but there's a very good chance we could end up with something like the CFAA, which would be far worse than relatively narrow judicial interpretations of the current law.
  - Natsu 13y ago
    The laws effectively codify commercial agreements between the public (who gets very little representation, IMHO) and various moneyed interests. As they had the better bargaining spot, I'm not really inclined to give them anything we did not specifically agree to. It's sad that their response to imaginative new technology is "we didn't think to outlaw that, so we're changing the rules." Might as well be a "right to profit" in my view.
DerpDerpDerp 13y ago
So, I don't have the right to contract to a company to do at their location what I would contract them to do at my house? Or is it just illegal when my neighbor makes the same contract? For example, no one is arguing that a webservices company wouldn't have the ability to create multiple VM instances, each of which stored copies of my digital media and streamed a single copy of them back to me upon request. (Assuming I had obtained the copyrights to use these products myself.) Nor that it would be illegal of the company to do this multiple times, for multiple clients, even if the VMs were hosted on the same physical machine. It's clearly that any of the copyright violations involved in this scheme would be the result of the end-user, and not of the hosting provider. I think the judge is simply wrong here - and that there is a meaningful distinction in the technology used to implement it, precisely because it's a per-customer service, rather than a bulk aggregation and redistribution.
nitrogen 13y ago
Aereo uses many antennas because the CableVision DVR precedent (or a different DVR precedent) said that deduplication was illegal in a remote DVR service, but one copy to one subscriber was fine. They may have even started with one antenna generating many copies (one per viewer), and designed the multi-antenna hardware because of a different court's decision, but I cannot recall, and searching is difficult from a phone.

Natsu 13y ago

So then what are the rules they are to play by? "We'll make them up whenever we feel like it!" Certainly, this is a legal problem, but that to me indicates that it is their problem to fix, not Aereo's. If their judgements rest so heavily on the minutea of the tech backing this up, perhaps it is time to rethink these laws on more principled grounds than they have sofar been imagined....

ewoodrich 13y ago
You certainly make a good point, but I disagree with your conclusion. Ideally, a law is drafted as narrowly as possible. Otherwise, it is open to extremely broad interpretation and eventually becomes far removed from its original purpose ( the Computer Fraud and Abuse Act and RICO are examples of laws where this principle has not been followed). If a more "principled law" were to replace the current OTA rules, it would certainly be far more expansive to include all immediately foreseeable edge cases (Congress tends not to get excessively involved in the finer points of modern tech, partially due to awareness that incorrect jargon could result in a law becoming obsolete in a few years). The cited opinion does not rely on the minutea of the tech at all, the judge is using the technical description to illustrate how a complex technical scheme can be used to circumvent the intent of a law. And generally, judges do not look favorably on what they percieve to be "legal tricks", in this case, applying the unarguably legal example of private OTA viewing to a far more expansive scheme to act as a secondary provider of OTA streams without properly licensing them for redistribution. I'm sure that the law could be rewritten in a more "principled" way, but there's a very good chance we could end up with something like the CFAA, which would be far worse than relatively narrow judicial interpretations of the current law.
- Natsu 13y ago
  The laws effectively codify commercial agreements between the public (who gets very little representation, IMHO) and various moneyed interests. As they had the better bargaining spot, I'm not really inclined to give them anything we did not specifically agree to. It's sad that their response to imaginative new technology is "we didn't think to outlaw that, so we're changing the rules." Might as well be a "right to profit" in my view.

DerpDerpDerp 13y ago

So, I don't have the right to contract to a company to do at their location what I would contract them to do at my house? Or is it just illegal when my neighbor makes the same contract? For example, no one is arguing that a webservices company wouldn't have the ability to create multiple VM instances, each of which stored copies of my digital media and streamed a single copy of them back to me upon request. (Assuming I had obtained the copyrights to use these products myself.) Nor that it would be illegal of the company to do this multiple times, for multiple clients, even if the VMs were hosted on the same physical machine. It's clearly that any of the copyright violations involved in this scheme would be the result of the end-user, and not of the hosting provider. I think the judge is simply wrong here - and that there is a meaningful distinction in the technology used to implement it, precisely because it's a per-customer service, rather than a bulk aggregation and redistribution.

nitrogen 13y ago

Aereo uses many antennas because the CableVision DVR precedent (or a different DVR precedent) said that deduplication was illegal in a remote DVR service, but one copy to one subscriber was fine. They may have even started with one antenna generating many copies (one per viewer), and designed the multi-antenna hardware because of a different court's decision, but I cannot recall, and searching is difficult from a phone.