6 ms·

Our Path Forward

100 points by e15ctr0n 12y ago

skwirl 12y ago
If I understand correctly: Broadcasters: Aereo is a cable company! Aereo: We're not a cable company! Supreme court: We decree that Aereo is a cable company. Aereo: Ok, I guess we're a cable company, so let's litigate under the statutes that apply to cable companies. Broadcasters: But you said before that you weren't a cable company so therefore you aren't!
- callahad 12y ago
  Also, Aereo: Oh, and remember that SCOTUS only specifically said we're infringing when things are rebroadcast nearly simultaneously. Because they punted on the question of later playback, you should totally let us do DVR-style playback, even if you grant an injunction.
  - Guvante 12y ago
    I don't know if it is as weak as you are implying. Remember the injunction is only supposed to protect the plaintiff, not kill the defendant. An injunction that only applies until the show is over would provide most of the benefit the plaintiff needs while not destroying Aereo in the mean time.
jwise0 12y ago
Although I have no love in particular for the plaintiffs in this case, and I think that Aereo's new strategy is probably something they should be allowed to pursue, there was one sentence in their response that really rubbed me the wrong way. Aereo wrote: "Aereo has been careful to follow the law, and the Supreme Court announced a new and different rule governing Aereo's operations last week." Their claim is that the lower courts had one rule, and the Supreme Court announced a new rule. Although I understand where they're coming from, I'm not sure I agree with that characterization: I believe it would be the position of the Supreme Court that their interpretation of the law has /always/ been the correct interpretation of the law, and that Aereo was simply misguided earlier (but that that does not excuse their failure to act in accordance with the law). ABC are probably right that Aereo should have brought up the S111 argument before; this sort of thing, I understand, is common (the legalese for such being 'arguendo').
- cabose 12y ago
  Right they should have brought up the argument earlier however, just because they did not bring it up does not waive their right to bring it up later in this context. So I understand ABC's push back, any lawyer would make the same argument, but it will not hold.
- dragonwriter 12y ago
  > Their claim is that the lower courts had one rule, and the Supreme Court announced a new rule. Although I understand where they're coming from, I'm not sure I agree with that characterization: I believe it would be the position of the Supreme Court that their interpretation of the law has /always/ been the correct interpretation of the law, and that Aereo was simply misguided earlier (but that that does not excuse their failure to act in accordance with the law). That the Supreme Court's interpretation was always correct does not in anyway contradict that the law as applied by the Second Circuit in the case was different, and doesn't say anything about whether the law applied by the Second Circuit previously was consistent with Second Circuit precedent that was binding on the District Court and thus appropriate for Aereo to use a basis for its arguments prior to the Supreme Court ruling. The key issue, it seems to me, is whether Aereo previously argued facts that make it ineligible for S111 under the law now binding on the District Court, are whether it merely argued that it was not an entity as would be covered under S111 given a position on the law which has since been rejected by the Supreme Court and is therefore no longer valid.
- thaumasiotes 12y ago
  > I believe it would be the position of the Supreme Court that their interpretation of the law has /always/ been the correct interpretation of the law No -- this idea is often viewed as a necessary fiction to maintain in order to give the courts legitimacy in the eyes of the public, but it does not have (and has never had) much traction among legal professionals.
  - pdabbadabba 12y ago
    You seem to be interpreting jwise's comments as somehow premised upon legal realism. (I.e., that the correct legal rules are "out there" and that judges need only to "discover" them.) This is slightly different from the claim I think jwise is making: that it has always been the best interpretation of our existing body of law. The difference between this and classical legal realism is subtle, deep, and interesting (and, I hasten to add, contested!). And it is the subject of a vast and growing literature in the field of jurisprudence -- we call this (or a version of it) the "Hart / Dworkin" debate. As a starting point, have a look at Ronald Dworkin's article "Hard Cases." The gist of Dworkin's position (with which I mostly agree) is this: in many cases where the existing written body of law does not literally cover the facts of a given case, a judge often (indeed, almost always) is nonetheless not free to simply decide the case however she wants. There is typically a best interpretation of that existing body of law (you might think of it as the law's "spirit," I guess) that, itself, has something like the force of law in that it binds judges. Thus, anyone with sufficient training can look at a case, and look at the laws on the books, and tell what the rule is (even if sometimes the required training considerable -- well beyond the ken of any normal lawyer). And while you are correct that most lawyers today are not "legal realists" I think it is also clear that most are "Dworkinians" in that, when a hard case like Aereo comes up, they don't think that there simply is no rule yet, and that judges are free to do whatever they want. They see it as their task to educate the court about what the best interpretation of existing written law is and, thus, what the actual law is.
joelhaus 12y ago
TLDR:IANAL (i) After SCOTUS characterizes Aereo as cable company, Aereo appears willing to pay statutory content licensing fees that apply to cable companies. (ii) Aereo also seeks to retain the remote DVR feature of their service because the SCOTUS ruling only applies to live or near-live content transmission. The former would create added costs, while the latter would obviously harm Aereo's value proposition because of the lack of live sporting events. Hope they find a way to survive.
- oddevan 12y ago
  Added costs, though those costs are MUCH lower than the amount per subscriber the broadcast channels currently receive (due to additional licenses to carry other channels/on-demand content), so even with the compulsory licenses Aereo can still undercut cable on cost/service.
- yaur 12y ago
  The programmers have never been willing to treat OTT providers as legitimate MVPDs, if they were we would have had "internet cable" years ago. The real risk to Aereo here is that this opens up competition and will likely trigger a bunch of MFNs that will allow traditional cable companies get into the OTT market. Since the programmers' rates cards are largely based on the number of subscribers Comcast and company will be able to kill them on price.
  - dublinben 12y ago
    I've been an Aereo customer since they first entered my city. I'm looking forward to paying again if they start offering a DVR-only service. I would never pay Comcast a cent for a similar service. I'm using Aereo to get away from Comcast.
paul9290 12y ago
I say Aereo and or another should become a wireless ISP like NetBlazr (article about them http://goo.gl/TpBh9A http://goo.gl/TpBh9A). NetBlazr sets up WiFi antenna's on rooftops now. While you set up my Internet antenna, please set up a TV antenna for me - one I can access streaming via the web. I only pay for Internet service and a one time TV antenna set up fee. Now if this company, whether it be NetBlazr or Aereo wants to offer more channels via their web site where I watch my local channels then great! I just might buy more channels.
- dsl 12y ago
  In major metros it is really hard to get roof rights. In larger buildings HOAs even have exclusive agreements with cable and satellite resellers that install a single set of equipment for the entire building. You are trading one set of ridiculous laws for another.
  - upofadown 12y ago
    Supposedly those exclusive deals are no longer allowed: http://arstechnica.com/tech-policy/2009/05/federal-court-upholds-fcc-ban-on-exclusive-cable-deals/ http://arstechnica.com/tech-policy/2009/05/federal-court-uph...
  - paul9290 12y ago
    The solution above would suit my needs and work for where I live. It most likely wouldn't be able to scale to cable company levels, but it would be a great small to mid-size local business. One that could be replicated in cities across the nation.
wmf 12y ago
If they want to become a cable company maybe they should merge with Intel/Verizon OnCue to get better economy of fail.
guelo 12y ago
The broadcasters have been given a huge amount of very valuable public spectrum that is increasingly useless. It really should be taken away from them and made unlicensed. Can you imagine the benefits to society if these useless giant companies stopped hogging the spectrum and a million innovators got to play in that playground?
deleted 12y ago
[deleted]

100 points by e15ctr0n 12y ago

If I understand correctly: Broadcasters: Aereo is a cable company! Aereo: We're not a cable company! Supreme court: We decree that Aereo is a cable company. Aereo: Ok, I guess we're a cable company, so let's litigate under the statutes that apply to cable companies. Broadcasters: But you said before that you weren't a cable company so therefore you aren't!

callahad 12y ago
Also, Aereo: Oh, and remember that SCOTUS only specifically said we're infringing when things are rebroadcast nearly simultaneously. Because they punted on the question of later playback, you should totally let us do DVR-style playback, even if you grant an injunction.
- Guvante 12y ago
  I don't know if it is as weak as you are implying. Remember the injunction is only supposed to protect the plaintiff, not kill the defendant. An injunction that only applies until the show is over would provide most of the benefit the plaintiff needs while not destroying Aereo in the mean time.

jwise0 12y ago

Although I have no love in particular for the plaintiffs in this case, and I think that Aereo's new strategy is probably something they should be allowed to pursue, there was one sentence in their response that really rubbed me the wrong way. Aereo wrote: "Aereo has been careful to follow the law, and the Supreme Court announced a new and different rule governing Aereo's operations last week." Their claim is that the lower courts had one rule, and the Supreme Court announced a new rule. Although I understand where they're coming from, I'm not sure I agree with that characterization: I believe it would be the position of the Supreme Court that their interpretation of the law has /always/ been the correct interpretation of the law, and that Aereo was simply misguided earlier (but that that does not excuse their failure to act in accordance with the law). ABC are probably right that Aereo should have brought up the S111 argument before; this sort of thing, I understand, is common (the legalese for such being 'arguendo').

cabose 12y ago
Right they should have brought up the argument earlier however, just because they did not bring it up does not waive their right to bring it up later in this context. So I understand ABC's push back, any lawyer would make the same argument, but it will not hold.
dragonwriter 12y ago
> Their claim is that the lower courts had one rule, and the Supreme Court announced a new rule. Although I understand where they're coming from, I'm not sure I agree with that characterization: I believe it would be the position of the Supreme Court that their interpretation of the law has /always/ been the correct interpretation of the law, and that Aereo was simply misguided earlier (but that that does not excuse their failure to act in accordance with the law). That the Supreme Court's interpretation was always correct does not in anyway contradict that the law as applied by the Second Circuit in the case was different, and doesn't say anything about whether the law applied by the Second Circuit previously was consistent with Second Circuit precedent that was binding on the District Court and thus appropriate for Aereo to use a basis for its arguments prior to the Supreme Court ruling. The key issue, it seems to me, is whether Aereo previously argued facts that make it ineligible for S111 under the law now binding on the District Court, are whether it merely argued that it was not an entity as would be covered under S111 given a position on the law which has since been rejected by the Supreme Court and is therefore no longer valid.
thaumasiotes 12y ago
> I believe it would be the position of the Supreme Court that their interpretation of the law has /always/ been the correct interpretation of the law No -- this idea is often viewed as a necessary fiction to maintain in order to give the courts legitimacy in the eyes of the public, but it does not have (and has never had) much traction among legal professionals.
- pdabbadabba 12y ago
  You seem to be interpreting jwise's comments as somehow premised upon legal realism. (I.e., that the correct legal rules are "out there" and that judges need only to "discover" them.) This is slightly different from the claim I think jwise is making: that it has always been the best interpretation of our existing body of law. The difference between this and classical legal realism is subtle, deep, and interesting (and, I hasten to add, contested!). And it is the subject of a vast and growing literature in the field of jurisprudence -- we call this (or a version of it) the "Hart / Dworkin" debate. As a starting point, have a look at Ronald Dworkin's article "Hard Cases." The gist of Dworkin's position (with which I mostly agree) is this: in many cases where the existing written body of law does not literally cover the facts of a given case, a judge often (indeed, almost always) is nonetheless not free to simply decide the case however she wants. There is typically a best interpretation of that existing body of law (you might think of it as the law's "spirit," I guess) that, itself, has something like the force of law in that it binds judges. Thus, anyone with sufficient training can look at a case, and look at the laws on the books, and tell what the rule is (even if sometimes the required training considerable -- well beyond the ken of any normal lawyer). And while you are correct that most lawyers today are not "legal realists" I think it is also clear that most are "Dworkinians" in that, when a hard case like Aereo comes up, they don't think that there simply is no rule yet, and that judges are free to do whatever they want. They see it as their task to educate the court about what the best interpretation of existing written law is and, thus, what the actual law is.

joelhaus 12y ago

TLDR:IANAL (i) After SCOTUS characterizes Aereo as cable company, Aereo appears willing to pay statutory content licensing fees that apply to cable companies. (ii) Aereo also seeks to retain the remote DVR feature of their service because the SCOTUS ruling only applies to live or near-live content transmission. The former would create added costs, while the latter would obviously harm Aereo's value proposition because of the lack of live sporting events. Hope they find a way to survive.

oddevan 12y ago
Added costs, though those costs are MUCH lower than the amount per subscriber the broadcast channels currently receive (due to additional licenses to carry other channels/on-demand content), so even with the compulsory licenses Aereo can still undercut cable on cost/service.
yaur 12y ago
The programmers have never been willing to treat OTT providers as legitimate MVPDs, if they were we would have had "internet cable" years ago. The real risk to Aereo here is that this opens up competition and will likely trigger a bunch of MFNs that will allow traditional cable companies get into the OTT market. Since the programmers' rates cards are largely based on the number of subscribers Comcast and company will be able to kill them on price.
- dublinben 12y ago
  I've been an Aereo customer since they first entered my city. I'm looking forward to paying again if they start offering a DVR-only service. I would never pay Comcast a cent for a similar service. I'm using Aereo to get away from Comcast.

paul9290 12y ago

I say Aereo and or another should become a wireless ISP like NetBlazr (article about them http://goo.gl/TpBh9A http://goo.gl/TpBh9A). NetBlazr sets up WiFi antenna's on rooftops now. While you set up my Internet antenna, please set up a TV antenna for me - one I can access streaming via the web. I only pay for Internet service and a one time TV antenna set up fee. Now if this company, whether it be NetBlazr or Aereo wants to offer more channels via their web site where I watch my local channels then great! I just might buy more channels.

dsl 12y ago
In major metros it is really hard to get roof rights. In larger buildings HOAs even have exclusive agreements with cable and satellite resellers that install a single set of equipment for the entire building. You are trading one set of ridiculous laws for another.
- upofadown 12y ago
  Supposedly those exclusive deals are no longer allowed: http://arstechnica.com/tech-policy/2009/05/federal-court-upholds-fcc-ban-on-exclusive-cable-deals/ http://arstechnica.com/tech-policy/2009/05/federal-court-uph...
- paul9290 12y ago
  The solution above would suit my needs and work for where I live. It most likely wouldn't be able to scale to cable company levels, but it would be a great small to mid-size local business. One that could be replicated in cities across the nation.

wmf 12y ago

If they want to become a cable company maybe they should merge with Intel/Verizon OnCue to get better economy of fail.

guelo 12y ago

The broadcasters have been given a huge amount of very valuable public spectrum that is increasingly useless. It really should be taken away from them and made unlicensed. Can you imagine the benefits to society if these useless giant companies stopped hogging the spectrum and a million innovators got to play in that playground?

deleted 12y ago

[deleted]