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This was tried before with the "rent a DVD and player" streaming service (Zediva [1]). I would be shocked if Aereo won this case. The courts look strongly at

This was tried before with the "rent a DVD and player" streaming service (Zediva [1]). I would be shocked if Aereo won this case. The courts look strongly at the intention of the law; it's not the same "literally as-written" interpretation that technical folk tend to take of things. From the Zediva case: "The courts ruled that it was irrelevant that the videos were streamed to one customer at a time in his private hotel room; the service still transmitted videos 'to the public,'" [1] 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...

xhrpost 13y ago
I remember reading about this. Even from the "intention of the law" perspective though, I still didn't get the argument of the MPAA. How is it that a private individual choosing a title to watch for themselves constitute as a "public" display of the work? They were renting their own DVD player and legit movie disc, something anyone can do physically if they so choose by going to a couple stores.
- CamperBob2 13y ago
  Because the MPAA rents its own US Senators, that's why.
  - EGreg 13y ago
    Not supreme court justices though
- danielweber 13y ago
  Because the company is doing the performance to the public, even if they did a little dog-and-pony show to try and make it seem like it wasn't. I think there are distinctions with the Aereo case, though. I could see Aereo winning despite the remote-watching-DVD case, and I was very confident in correctly predicting how the DVD case would turn out.
  - paul_f 13y ago
    There is no legal basis for this, which you are presenting as fact: Because the company is doing the performance to the public
- jrockway 13y ago
  The MPAA's goal is to ensure that every cent that exists in the Universe is given to the motion picture industry. Why would they make an absurd argument about something? Because if it convinces someone, it moves them closer to their goal. If it fails to convince anyone, then they get no farther away from their goal. This, incidentally, is why you lose a quarter point on the SAT when you get the answer wrong.
Dylan16807 13y ago
Why is that more applicable than the "cloud DVR" case?
- rhino369 13y ago
  One way to distinguish Aereo from Cablevision's cloud DVR is that Cablevision already had the rights to distribute the content. Aereo has absolutely no right to distribute OTA broadcast signals. The court can say that time-shifting content you are licensed to broadcast is allowed but time/place shifting unlicensed content is not. I think the whole issue is sort of crazy. Aereo could probably license the content and distribute it cheaper without having to mess around with thousands and thousands of antennas.
  - greyfade 13y ago
    It doesn't really make sense for them to license the content, though. This content is being broadcast for free over radio. Aereo is providing the service of establishing a remote receiver for the public to pick up OTA broadcasts outside the transmission area. At best you could make the argument that Aereo is acting in the capacity of a radio translator station, but it clearly doesn't fall under the same (FCC) rules since no radio rebroadcast is performed. The fact that it happens over the Internet is a mere implementation detail, one that is supported by the Cablevision case.
    - lesterbuck 13y ago
      >Aereo is providing the service of establishing a remote receiver for the public to pick up OTA broadcasts outside the transmission area. I was in the Aereo beta in Houston (I didn't keep it, found it kind of boring, fuzzy and laggy, and not matching how I watch OTA on multiple TVs at once). When I tried to watch a Houston OTA stream in San Antonio, I was politely told that that was not allowed. There is no technical reason this is not allowed, but I'd guess Aereo blocks this for now to keep the legal issues bounded.
  - paul_f 13y ago
    "Aereo has absolutely no right to distribute OTA broadcast signals" In the US, ones does not need an explicit "right" to do something that is legal. I don't even understand that way of thinking. We delegate powers to the government, we retain all rights to ourselves.
thesimpsons1022 13y ago
you also have to consider that the old bastards on the supreme court aren't always fair and are fairly often on the side of big corporations. (Citizens United, Bush v. Gore, McCutcheon v. FEC). They don't have the best track record on cases like this, or cases in general.
EGreg 13y ago
I doubt Aereo will win, but this will decide what "publicly available" means. It is a question of economics. Nothing physical is truly a "public good", there are always externalities to every transaction including consumption of content. And if something is free of cost, we can test the limits by repackaging it and undermining the price via externalities which is what's happening here.
cromulent 13y ago
Agreed. Outsourcing your time-and-place shifting put liabilities on the service provider. The TV-Kaista case in Finland has proceeded to criminal charges. http://www.helsinkitimes.fi/index.php/finland/finland-news/domestic/4181-tvkaista-executives-face-charges http://www.helsinkitimes.fi/index.php/finland/finland-news/d...
chimeracoder 13y ago
> This was tried before with the "rent a DVD and player" streaming service (Zediva). A huge difference between Zediva and Aereo is that Aereo only rebroadcasts network television. All the content that Aereo rebroadcasts is already required by law to be publicly accessible and unencrypted(!)[0]. This is why they only serve over-the-air content - the same law does not apply to DVDs rented, or even to cable television. Also, to my knowledge, Aereo does not deduplicate content stored, whereas Zediva essentially does. You and I know that there's no difference between "my" digital copy and "your" digital copy, but Aereo does store a separate copy per-user and only distributes each copy to the correct user. The reason that Aereo separates those copies is because we already have case law that establishes my right to record an over-the-air broadcast and replay it for myself[1]. Aereo maintains that it is acting on behalf of the customers to exercise the customers' right to create personal recordings. If they de-duplicated the data (as Zediva did), they'd certainly save a lot on storage and hardware costs, but they'd no longer be protected by this legal precedent. Aereo has a very well-funded legal team that is certainly aware of Zediva and other landmark legal precedents[2] - they specifically crafted their entire business around the Cablevision ruling and other case law. [0] In 2012, the FCC decided to allow cable operators to encrypt these signals, but even this only applies to the retransmission: "The FCC wants to ensure that consumers can still access basic cable services without specifically renting a box from the cable companies. And so the FCC is requiring that the cable operators make the unencrypted TV signals available to third-party device makers and Internet TV service providers." (http://www.cnet.com/news/fcc-allows-cable-operators-to-encrypt-basic-cable-tv-signals/ http://www.cnet.com/news/fcc-allows-cable-operators-to-encry...) [1] https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Unive.... [2] Aereo's raised $100MM in 4 rounds. Three of those rounds included IAC, which is run by Barry Diller, who has plenty of relevant industry experience, to say the least: https://en.wikipedia.org/wiki/Barry_Diller https://en.wikipedia.org/wiki/Barry_Diller
- shasta 13y ago
  > If they de-duplicated the data (as Zediva did), they'd certainly save a lot on storage and hardware costs, but they'd no longer be protected by this legal precedent. This should be a clue to the supremes that this is bad law.
guelo 13y ago
If the issue were so obvious it would not have made it through multiple courts up to the supreme court.
brownbat 13y ago
It was also tried before finding the opposite result, when cable companies repackaged broadcast signals and transported them for a fee, in arguably much closer precedents: Teleprompter Corp. v. CBS, 415 U.S. 394 (1974) [1] Fortnightly Corp. v. United Artists Television, Inc. - 392 U.S. 390 (1968) [2] Unlike the Zediva case, these were actually heard at the Supreme Court (but they are also old, decided before some important cable bills and copyright act modifications). Eh, seemingly conflicting precedents are, of course, why we are at this stage. [1] http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=415&invol=394 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&... [2] http://supreme.justia.com/cases/federal/us/392/390/ http://supreme.justia.com/cases/federal/us/392/390/ EDIT: links.
- brownbat 13y ago
  UPDATE: I just read ABC's final reply brief [1], where they argue that Fortnightly and Teleprompter don't apply because of 17 USC 111(c), drafted by Congress just after those cases. 17 USC 111 says cable companies can retransmit, but only for a fee. I see three reasonable interpretations of this result: 1. Aereo can retransmit, just has to pay licensing fees. 2. 17 USC 111 does not apply at all to Aereo, because Aereo is not a cable company, therefore the old precedents stand, and Aereo can retransmit without any fees. 3. Congressional action set the precise requirements for anyone to retransmit (ie, you must be a cable operator), and thus Aereo is flat out prohibited from rebroadcasting at all. All of these seem prima facie reasonable, there's lots of room for judicial interpretation. I think there's a strong case to be made for 2, since Congress only took two years to respond to rulings before. Congress has demonstrated competence here, it can patch its out of date laws without requiring the Supreme Court to start radically reinterpreting "cable operator" to mean "any internet company." The Supreme Court therefore should just interpret as strictly as possible, doing as little work for policymakers as necessary. That means 17 USC 111 doesn't apply to Aereo at all, and we're left with valid Supreme Court precedents to control the case. If Congress doesn't like it, they can explicitly clarify 17 USC 111 at any time. [1] http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/13-461_pet_reply.authcheckdam.pdf http://www.americanbar.org/content/dam/aba/publications/supr...

xhrpost 13y ago

I remember reading about this. Even from the "intention of the law" perspective though, I still didn't get the argument of the MPAA. How is it that a private individual choosing a title to watch for themselves constitute as a "public" display of the work? They were renting their own DVD player and legit movie disc, something anyone can do physically if they so choose by going to a couple stores.

CamperBob2 13y ago
Because the MPAA rents its own US Senators, that's why.
- EGreg 13y ago
  Not supreme court justices though
danielweber 13y ago
Because the company is doing the performance to the public, even if they did a little dog-and-pony show to try and make it seem like it wasn't. I think there are distinctions with the Aereo case, though. I could see Aereo winning despite the remote-watching-DVD case, and I was very confident in correctly predicting how the DVD case would turn out.
- paul_f 13y ago
  There is no legal basis for this, which you are presenting as fact: Because the company is doing the performance to the public
jrockway 13y ago
The MPAA's goal is to ensure that every cent that exists in the Universe is given to the motion picture industry. Why would they make an absurd argument about something? Because if it convinces someone, it moves them closer to their goal. If it fails to convince anyone, then they get no farther away from their goal. This, incidentally, is why you lose a quarter point on the SAT when you get the answer wrong.

Dylan16807 13y ago

Why is that more applicable than the "cloud DVR" case?

rhino369 13y ago
One way to distinguish Aereo from Cablevision's cloud DVR is that Cablevision already had the rights to distribute the content. Aereo has absolutely no right to distribute OTA broadcast signals. The court can say that time-shifting content you are licensed to broadcast is allowed but time/place shifting unlicensed content is not. I think the whole issue is sort of crazy. Aereo could probably license the content and distribute it cheaper without having to mess around with thousands and thousands of antennas.
- greyfade 13y ago
  It doesn't really make sense for them to license the content, though. This content is being broadcast for free over radio. Aereo is providing the service of establishing a remote receiver for the public to pick up OTA broadcasts outside the transmission area. At best you could make the argument that Aereo is acting in the capacity of a radio translator station, but it clearly doesn't fall under the same (FCC) rules since no radio rebroadcast is performed. The fact that it happens over the Internet is a mere implementation detail, one that is supported by the Cablevision case.
  - lesterbuck 13y ago
    >Aereo is providing the service of establishing a remote receiver for the public to pick up OTA broadcasts outside the transmission area. I was in the Aereo beta in Houston (I didn't keep it, found it kind of boring, fuzzy and laggy, and not matching how I watch OTA on multiple TVs at once). When I tried to watch a Houston OTA stream in San Antonio, I was politely told that that was not allowed. There is no technical reason this is not allowed, but I'd guess Aereo blocks this for now to keep the legal issues bounded.
- paul_f 13y ago
  "Aereo has absolutely no right to distribute OTA broadcast signals" In the US, ones does not need an explicit "right" to do something that is legal. I don't even understand that way of thinking. We delegate powers to the government, we retain all rights to ourselves.

thesimpsons1022 13y ago

you also have to consider that the old bastards on the supreme court aren't always fair and are fairly often on the side of big corporations. (Citizens United, Bush v. Gore, McCutcheon v. FEC). They don't have the best track record on cases like this, or cases in general.

EGreg 13y ago

I doubt Aereo will win, but this will decide what "publicly available" means. It is a question of economics. Nothing physical is truly a "public good", there are always externalities to every transaction including consumption of content. And if something is free of cost, we can test the limits by repackaging it and undermining the price via externalities which is what's happening here.

cromulent 13y ago

Agreed. Outsourcing your time-and-place shifting put liabilities on the service provider. The TV-Kaista case in Finland has proceeded to criminal charges. http://www.helsinkitimes.fi/index.php/finland/finland-news/domestic/4181-tvkaista-executives-face-charges http://www.helsinkitimes.fi/index.php/finland/finland-news/d...

chimeracoder 13y ago

> This was tried before with the "rent a DVD and player" streaming service (Zediva). A huge difference between Zediva and Aereo is that Aereo only rebroadcasts network television. All the content that Aereo rebroadcasts is already required by law to be publicly accessible and unencrypted(!)[0]. This is why they only serve over-the-air content - the same law does not apply to DVDs rented, or even to cable television. Also, to my knowledge, Aereo does not deduplicate content stored, whereas Zediva essentially does. You and I know that there's no difference between "my" digital copy and "your" digital copy, but Aereo does store a separate copy per-user and only distributes each copy to the correct user. The reason that Aereo separates those copies is because we already have case law that establishes my right to record an over-the-air broadcast and replay it for myself[1]. Aereo maintains that it is acting on behalf of the customers to exercise the customers' right to create personal recordings. If they de-duplicated the data (as Zediva did), they'd certainly save a lot on storage and hardware costs, but they'd no longer be protected by this legal precedent. Aereo has a very well-funded legal team that is certainly aware of Zediva and other landmark legal precedents[2] - they specifically crafted their entire business around the Cablevision ruling and other case law. [0] In 2012, the FCC decided to allow cable operators to encrypt these signals, but even this only applies to the retransmission: "The FCC wants to ensure that consumers can still access basic cable services without specifically renting a box from the cable companies. And so the FCC is requiring that the cable operators make the unencrypted TV signals available to third-party device makers and Internet TV service providers." (http://www.cnet.com/news/fcc-allows-cable-operators-to-encrypt-basic-cable-tv-signals/ http://www.cnet.com/news/fcc-allows-cable-operators-to-encry...) [1] https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Unive.... [2] Aereo's raised $100MM in 4 rounds. Three of those rounds included IAC, which is run by Barry Diller, who has plenty of relevant industry experience, to say the least: https://en.wikipedia.org/wiki/Barry_Diller https://en.wikipedia.org/wiki/Barry_Diller

shasta 13y ago
> If they de-duplicated the data (as Zediva did), they'd certainly save a lot on storage and hardware costs, but they'd no longer be protected by this legal precedent. This should be a clue to the supremes that this is bad law.

guelo 13y ago

If the issue were so obvious it would not have made it through multiple courts up to the supreme court.

brownbat 13y ago

It was also tried before finding the opposite result, when cable companies repackaged broadcast signals and transported them for a fee, in arguably much closer precedents: Teleprompter Corp. v. CBS, 415 U.S. 394 (1974) [1] Fortnightly Corp. v. United Artists Television, Inc. - 392 U.S. 390 (1968) [2] Unlike the Zediva case, these were actually heard at the Supreme Court (but they are also old, decided before some important cable bills and copyright act modifications). Eh, seemingly conflicting precedents are, of course, why we are at this stage. [1] http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=415&invol=394 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&... [2] http://supreme.justia.com/cases/federal/us/392/390/ http://supreme.justia.com/cases/federal/us/392/390/ EDIT: links.

brownbat 13y ago
UPDATE: I just read ABC's final reply brief [1], where they argue that Fortnightly and Teleprompter don't apply because of 17 USC 111(c), drafted by Congress just after those cases. 17 USC 111 says cable companies can retransmit, but only for a fee. I see three reasonable interpretations of this result: 1. Aereo can retransmit, just has to pay licensing fees. 2. 17 USC 111 does not apply at all to Aereo, because Aereo is not a cable company, therefore the old precedents stand, and Aereo can retransmit without any fees. 3. Congressional action set the precise requirements for anyone to retransmit (ie, you must be a cable operator), and thus Aereo is flat out prohibited from rebroadcasting at all. All of these seem prima facie reasonable, there's lots of room for judicial interpretation. I think there's a strong case to be made for 2, since Congress only took two years to respond to rulings before. Congress has demonstrated competence here, it can patch its out of date laws without requiring the Supreme Court to start radically reinterpreting "cable operator" to mean "any internet company." The Supreme Court therefore should just interpret as strictly as possible, doing as little work for policymakers as necessary. That means 17 USC 111 doesn't apply to Aereo at all, and we're left with valid Supreme Court precedents to control the case. If Congress doesn't like it, they can explicitly clarify 17 USC 111 at any time. [1] http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/13-461_pet_reply.authcheckdam.pdf http://www.americanbar.org/content/dam/aba/publications/supr...