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posted by NCommander on Wednesday June 25 2014, @03:55PM   Printer-friendly
from the why-we-can't-have-nice-things dept.

The United States Supreme Court has ruled 6-3 against Aereo, saying that Aereo's scheme to lease out thousands of tiny antennas doesn't differentiate it from a cable company, and therefore Aereo violates copyright law. "In a 6-3 opinion (PDF) written by Justice Steven Breyer, Aereo was found to violate copyright law. According to the opinion, the company is the equivalent of a cable company, which must pay licensing fees when broadcasting over-the-air content. "Viewed in terms of Congress; regulatory objectives, these behind-the-scenes technological differences do not distinguish Aereo's system from cable systems, which do perform publicly," reads the opinion."

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  • (Score: 5, Informative) by NCommander on Wednesday June 25 2014, @04:02PM

    by NCommander (2) Subscriber Badge <michael@casadevall.pro> on Wednesday June 25 2014, @04:02PM (#59932) Homepage Journal

    I took an opportunity to glance through the brief on Ars before this went live, and the logic is kinda ... odd. Basically, it boils down to the fact that in the late 60s, the supreme court ruled repeater systems (which boost OTA signal) were legal, as they did not "perform" anything, and thus not in violation to the copyright act. In the 70s, Congress closed this loophole to specifiably overturn the SCOTUS decision. The argument here is that since its being re-broadcast, its being performed, and thus Aereo ... is a cable company in effect.

    Ultimately, SCOTUS went and invented a new type of "like-a-cable-company" test to specifically kill Aereo since what they were doing wasn't technically illegal, but went against was Congress intended, and as such, closed the original loophole they used. The dissent (written by Scala) is pretty damning on the logic this case is using, and I'm honestly shocked how much I agreed with how it ripped the majority apart.

    When I have more time, I'll read the brief in full, but I'm struggling to follow the train of logic SCOTUS is used to apply to this case.

    --
    Still always moving
    • (Score: 3, Informative) by captain normal on Wednesday June 25 2014, @04:17PM

      by captain normal (2205) on Wednesday June 25 2014, @04:17PM (#59937)

      The interesting thing about this decision is that Scalia, Thomas and Alito were the 3 dissenting judges. Aren't these guys usually on the side of Big Biz?

      --
      "If men were angels, government would not be necessary." James Madison
      • (Score: 4, Insightful) by bzipitidoo on Wednesday June 25 2014, @04:25PM

        by bzipitidoo (4388) on Wednesday June 25 2014, @04:25PM (#59942) Journal

        Yes I noticed that too. I was expecting Sotomayor, Ginsburg, and perhaps Kagan to be the dissent. That they aren't, and that the dissent comes from the most extreme conservatives on the court I think again points up one of the biggest faults of the so-called political left, which is their copyright extremism. They're liberal on most things. But the left is not at all the left on anything Hollywood is against, like extensive reform of copyright. Heck, can't even get them to admit that copying is copying, not stealing.

        • (Score: 5, Informative) by NCommander on Wednesday June 25 2014, @04:28PM

          by NCommander (2) Subscriber Badge <michael@casadevall.pro> on Wednesday June 25 2014, @04:28PM (#59946) Homepage Journal

          Actually, in the dissent, they felt that Aereo is running around existing laws, but this isn't SCOTUS's job to fix, its Congress (page 33/34) of the brief).

          --
          Still always moving
          • (Score: 2) by Theophrastus on Wednesday June 25 2014, @05:01PM

            by Theophrastus (4044) on Wednesday June 25 2014, @05:01PM (#59960)

            I believe enforcing existing laws is the executive branch's job. (writing new laws: congress; checking that those laws are constitutional and interpreting actions against established law: judiciary) at least that's what "schoolhouse rock" would have us believe. (yet we really need a new set of those excellent cartoons to how K-street factors in)

            • (Score: 1) by Max Hyre on Friday June 27 2014, @08:47PM

              by Max Hyre (3427) <reversethis-{moc.oohay} {ta} {eryhxam}> on Friday June 27 2014, @08:47PM (#61078)
              ...is everybody's business. The Constitution requires that the President swear to

              [...] preserve, protect, and defend the Constitution of the United States.
                  
              -- said Constitution [archives.gov]

              and much the same goes for the VP, all of Congress, and Federal judges.

              Unfortunately, as observed in Cracking DES [cryptome.org], ``All too often, convincing Congress to violate the Constitution is like convincing a cat to follow a squeaking can opener[.]''

          • (Score: 2) by evilviper on Wednesday June 25 2014, @09:54PM

            by evilviper (1760) on Wednesday June 25 2014, @09:54PM (#60083) Homepage Journal

            Actually, in the dissent, they felt that Aereo is running around existing laws,

            How very strange that compliance with the letter-of-the-law is perfectly okay for big financial institutions, but not so for tech companies.

            but this isn't SCOTUS's job to fix, its Congress

            The courts *interpret* laws, and wherever it's unclear, try to base decisions on the *intentions* of those who created it, rather than the letter.

            --
            Hydrogen cyanide is a delicious and necessary part of the human diet.
      • (Score: 3, Funny) by SpockLogic on Wednesday June 25 2014, @08:23PM

        by SpockLogic (2762) on Wednesday June 25 2014, @08:23PM (#60041)

        I agree with Justice Antonin Scalia, Clarence Thomas and Samuel Alito.

        Wow, I never in my wildest dreams thought I'd ever write that.

        --
        Overreacting is one thing, sticking your head up your ass hoping the problem goes away is another - edIII
  • (Score: 4, Informative) by Anonymous Coward on Wednesday June 25 2014, @04:18PM

    by Anonymous Coward on Wednesday June 25 2014, @04:18PM (#59939)

    This decision basically upholds that copyright is now for rent-seeking. Anyone who wants a cut of someone else's innovation can simply assert copyright in some way and has to be given money. Innovation is not possible without paying the established corporations rent. I'm still trying to process this decision (it's already making me want to microwave a cat and mail people pizza rolls), but it seems to be saying innovation is not allowed in the USA without paying established corporations money. If this logic is extended, almost any new medium for the transfer of information could be shut down by the same approach. Apple could have been put out of business with the original iPod because it allowed people to bypass CDs in the same way Aero allows people to bypass cable TV. I wonder if this could be extended to cloud computing in general. Any time a copyrighted file is involved, a cloud service could be shut down. And there's no appeal, this is final.

    • (Score: 3, Interesting) by WillAdams on Wednesday June 25 2014, @04:21PM

      by WillAdams (1424) on Wednesday June 25 2014, @04:21PM (#59940)

      The appeal would be to get Congress to change the law in question --- or write one which demands that judicial review be done in terms of what is actually written into the law, as opposed to what the judges think was intended.

    • (Score: 2, Funny) by Anonymous Coward on Wednesday June 25 2014, @05:10PM

      by Anonymous Coward on Wednesday June 25 2014, @05:10PM (#59964)

      Pizza Rolls are owned by General Mills and cannot be distributed without their consent. As a result of your actions, all mail and shipping services will be shut down.

    • (Score: 2) by evilviper on Wednesday June 25 2014, @09:25PM

      by evilviper (1760) on Wednesday June 25 2014, @09:25PM (#60068) Homepage Journal

      This decision basically upholds that copyright is now for rent-seeking. Anyone who wants a cut of someone else's innovation can simply assert copyright in some way and has to be given money.

      Nonsense. The content WAS and IS decidedly copyrighted. Cable companies having to pay to retransmit copyrighted content is no more rent-seeking than people with DVD-Burners having to pay copyright owners to make and sell copies of their works. The rent-seeking part of copyright is that it has been unconstitutionally extended out to infinity-minus-1-day, instead of the original 20-year life to give creators ample time to profit from it before public domain takes over.

      by the same approach. Apple could have been put out of business with the original iPod because it allowed people to bypass CDs

      Nope. Only true if Apple was renting iPods, and the one who copied that music onto them from the radio or similar (which Aereo effectively does). You can still rent out a TV antenna.

      In fact, the next incarnation of Aereo might be to provide hosting space and VPN internet connectivity for Tivos/Slingboxes/HDHomeRuns, without Aereo directly managing the hardware and the storage space for the users.

      --
      Hydrogen cyanide is a delicious and necessary part of the human diet.
      • (Score: 2) by dry on Thursday June 26 2014, @04:11AM

        by dry (223) on Thursday June 26 2014, @04:11AM (#60209) Journal

        Not to argue your point but the original copyright term was 14+14 years with the necessity of registering your work and depositing a copy at Oxford or Cambridge all for advancing learning. The Americans copied this with the Constitution changing the advancement of learning to advancing the sciences and arts and Congress with the first American copyright law having the same terms except the copy deposited at the Library of Congress.
        14+14 still seems like a good compromise with most works from the 20th Century now entering the public domain and the blockbusters from pre-1986 entering the public domain. I like the idea of having to make an effort to copyright work as well, why should this post be copyrighted, especially for my lifetime + 50 (where I am) or 70 years. Perhaps an automatic protection for one year to stop someone taking your work before it is finished and/or registered.

  • (Score: 5, Interesting) by VLM on Wednesday June 25 2014, @04:27PM

    by VLM (445) on Wednesday June 25 2014, @04:27PM (#59944)

    One interesting aspect is as I interpret it, now legally "when broadcasting" means any signal sent from a corporation to a lower lifeform like a human. Formerly in the telecom EE ish biz broadcast has/had a firm and clear technical meaning of one TX and many (possible/theoretical) RX, which is precisely how Aereo did NOT operate to avoid legal issues, they were solely point to point not technically broadcasting at all.

    There are also interesting ham radio implications WRT the ban on broadcasting, well, if we redefine what it means to broadcast, then we've redefined whats banned in ham radio. Interesting. Maybe not useful in any possible way, but still interesting.

    So this means point to point WISP or pt-pt microwave studio/transmitter links are now "broadcasting". Maybe some ECPA implications to this, too.

    It'll be interesting to read detailed analysis of the side effects of this ruling.

    • (Score: 2) by RaffArundel on Wednesday June 25 2014, @05:12PM

      by RaffArundel (3108) on Wednesday June 25 2014, @05:12PM (#59966) Homepage

      There are also interesting ham radio implications WRT the ban on broadcasting, well, if we redefine what it means to broadcast, then we've redefined whats banned in ham radio.

      I don't quite follow, but believe I get the rest of your post. Can you elaborate on this point?

      I was under the impression there were already some pretty strict rules for amature broadcasters, at least here in the US. IIRC, if you weren't rebroadcasting amature radio stuff it better be a weather alert or other emergency information specifically intended for the public. Since they were already under tighter regulation, I don't quite see how this decision effects them at all.

      • (Score: 0) by Anonymous Coward on Wednesday June 25 2014, @05:27PM

        by Anonymous Coward on Wednesday June 25 2014, @05:27PM (#59972)

        > I was under the impression there were already some pretty strict rules for amature broadcasters,

        It might go the other way, if 1:1 counts as broadcasting, then the ham restriction on encryption might not apply any more since the single intended "receiver" would be able to receive it in the clear. That's the kind of thing that happens when we redefine words.

        • (Score: 2) by VLM on Wednesday June 25 2014, @05:38PM

          by VLM (445) on Wednesday June 25 2014, @05:38PM (#59978)

          ah don't try to rules lawyer with an old almost-QCWRA extra class, 97.113(a)(4) actually bans "messages encoded for the purpose of obscuring their meaning" which is interpreted as encryption but if anyone can't understand the meaning for whatever reason its still banned. So use Tolkien Elvish or Klingon all you want for pure fun on the air, but if you use it with the primary intent of obscuration you're THEN operating illegally. This was in fact a stereotypical ham radio holy war in the 70s and I don't remember how it turned out.

          Or rephrased the problem has never been the mathematical act of encryption, its always been having the purpose of obscuration, for absolutely anyone not just the recipient.

          • (Score: 0) by Anonymous Coward on Wednesday June 25 2014, @06:23PM

            by Anonymous Coward on Wednesday June 25 2014, @06:23PM (#60002)

            > its always been having the purpose of obscuration, for absolutely anyone not just the recipient.

            When broadcast has been redefined to 1:1 there is no one else.

          • (Score: 2) by janrinok on Wednesday June 25 2014, @06:55PM

            by janrinok (52) Subscriber Badge on Wednesday June 25 2014, @06:55PM (#60015) Journal

            That must cause fun with some American Indians. I'll wager that there aren't many FCC people who can understand any of the tribal languages.

            --
            I am not interested in knowing who people are or where they live. My interest starts and stops at our servers.
      • (Score: 3, Interesting) by VLM on Wednesday June 25 2014, @05:31PM

        by VLM (445) on Wednesday June 25 2014, @05:31PM (#59974)

        FCC part 97.113 Prohibited Transmissions section (b) An amateur station shall not engage in any form of broadcasting

        I guess if the supremes say a private point to point conversation is now "broadcasting" even though it wasn't one-to-many, that will have some implications for ham radio point to point communications aka just generic standard QSOs.

        Somehow I don't think it'll be enforced this way, but defining all 1 individual to 1 individual conversations as "broadcasting" it does technically make all ham radio use illegal, I think? Probably the loophole is the ham conversations are person - person not higher lifeform like corporation to lower lifeform like mere human.

        Too much speculation without real lawyer analysis is a ham radio tradition going back innumerable decades, although its always utterly ineffective and meaningless. But good fun, and it is tradition!

        • (Score: 2) by RaffArundel on Wednesday June 25 2014, @05:54PM

          by RaffArundel (3108) on Wednesday June 25 2014, @05:54PM (#59989) Homepage

          Ah, okay, now I kinda see your point. Here is the section in question:

          An amateur station shall not engage in any form of broadcasting, nor may an amateur station transmit one-way communications except as specifically provided in these rules; nor shall an amateur station engage in any activity related to program production or news gathering for broadcasting purposes, except that communications directly related to the immediate safety of human life or the protection of property may be provided by amateur stations to broadcasters for dissemination to the public where no other means of communication is reasonably available before or at the time of the event.

          Again, I am neither a license holder nor a lawyer, but talking with my friends who were, I was under the impression this "broadcasting" is using the amature radio station for something other than a "conversation". Aereo certainly wasn't a licensed amature radio station, nor were they holding a conversation. I seriously doubt the ruling would be remotely used that broadly. It is an interesting point, and the SECOND time today you did that to me.

        • (Score: 0) by Anonymous Coward on Wednesday June 25 2014, @07:33PM

          by Anonymous Coward on Wednesday June 25 2014, @07:33PM (#60027)

          I heard it mentioned the other day that this is the first example of a Supreme Court where not one of its members has ever run for elective office and that is what they have made such a shambles of campaign financing.

          I'm going to guess that not one of them has ever used a traditional transmitter.
          I wonder if any of them uses a cell phone.
          It would surprise me if one of them could even accurately describe any part of a cell phone communication.
          I doubt that any one of them has the slightest understanding of anything technological.

          -- gewg_

          • (Score: 0) by Anonymous Coward on Wednesday June 25 2014, @11:47PM

            by Anonymous Coward on Wednesday June 25 2014, @11:47PM (#60132)

            > I wonder if any of them uses a cell phone.

            I'm sure Kagan uses one. My mom's 20 years older than her and she's got a cell phone, its her main phone even.

            Knowing much about how they work is another thing, but that's true for practically all demographics of cell phone users.

            • (Score: 0) by Anonymous Coward on Thursday June 26 2014, @02:31AM

              by Anonymous Coward on Thursday June 26 2014, @02:31AM (#60186)

              OTOH, I'm pretty sure your Mom doesn't make decisions that affect hundreds of millions of people.

              -- gewg_

        • (Score: 2) by urza9814 on Thursday June 26 2014, @05:15PM

          by urza9814 (3954) on Thursday June 26 2014, @05:15PM (#60429) Journal

          International treaties *require* the US government to permit amateur radio operation. Under US law, international treaties have about equal standing to the Constitution. No mere law or court decision can ban amateur radio operation; any that would threaten it are automatically invalid! :)

    • (Score: 2) by evilviper on Wednesday June 25 2014, @09:15PM

      by evilviper (1760) on Wednesday June 25 2014, @09:15PM (#60065) Homepage Journal

      if we redefine what it means to broadcast, then we've redefined whats banned in ham radio

      No. The term "broadband" has been similarly misappropriated into a legal term, which now means "high speed" (with a continually moving goal-post), even used for baseband data connections, and yet the world hasn't fallen apart.

      Every law has a section of definitions for terms used. Their usage of "broadcast" is no-doubt defined in those antique ham radio laws and won't be affected by this new, independent and unrelated definition of broadband. Many words have multiple definitions based on context, anyhow.

      IANAL, and obviously neither are you.

      --
      Hydrogen cyanide is a delicious and necessary part of the human diet.
      • (Score: 2) by VLM on Wednesday June 25 2014, @09:43PM

        by VLM (445) on Wednesday June 25 2014, @09:43PM (#60073)

        Its not a law its a regulation. So if the FCC wants to change it, to some extent they just file it and be done with it. Anyway I was motivated enough to look it up:

        CFR 47 part 97.3 (a) The definitions of terms used in part 97 are:

        (blah blah deleted)

        (10) Broadcasting. Transmissions intended for reception by the general public, either direct or relayed.

        So you actually did get me, but by the wrong mechanism, in that the FCC defines what broadcasting "is" based on the svc. So I was in fact wrong to assume whatever the supremes force as a redefinition of "watchin TV" would naturally affect part 97 operations because 97 defines its terms separately from other parts. This was actually interesting and I'm glad I got the motivation to look it up.

        Also I think you're confusing broadband and broadcast, whatever.

        • (Score: 2) by evilviper on Wednesday June 25 2014, @11:14PM

          by evilviper (1760) on Wednesday June 25 2014, @11:14PM (#60114) Homepage Journal

          Also I think you're confusing broadband and broadcast

          You think wrong. Read more closely. It was a similar example of legal wording being contradictory to technical wording.

          --
          Hydrogen cyanide is a delicious and necessary part of the human diet.
    • (Score: 2) by Non Sequor on Thursday June 26 2014, @03:22AM

      by Non Sequor (1005) on Thursday June 26 2014, @03:22AM (#60197) Journal

      I think precedent is typically interpreted in a context sensitive manner so I think it's unlikely that this will be brought up in a different kind of case.

      --
      Write your congressman. Tell him he sucks.
    • (Score: 2) by urza9814 on Thursday June 26 2014, @04:56PM

      by urza9814 (3954) on Thursday June 26 2014, @04:56PM (#60419) Journal

      This raises some interesting ways to fight such a ruling...

      If broadcasting is now any transmission at all...then yes, under FCC rules amateur broadcasting is illegal so all amateur radio is also illegal. However, amateur radio is *also* governed by international treaties, such as CEPT, which *require* signing nations to permit amateur radio operation. Since international treaties have higher standing than acts of congress, which have higher standing than supreme court decisions...this treaty means the FCC cannot ban 1:1 transmission, which means the supreme court can't redefine broadcasts in this way, which means this ruling is invalid.

      ...IANAL, obviously ;)

  • (Score: 2) by VLM on Wednesday June 25 2014, @04:35PM

    by VLM (445) on Wednesday June 25 2014, @04:35PM (#59951)

    "saying that Aereo's scheme to lease out thousands of tiny antennas doesn't differentiate it from a cable company"

    Interesting thought experiment... Lease out thousands of tiny physical antennas, see what happens. Anytime you add a suffix of "over the internet" to anything, it totally confuses old gray/white hairs so removing it, might help them get it past their senility.

    Doesn't have to be thousands, my former bachelor pad a long time ago had "community" satellite dishes we could connect to although I was fuzzy on the fees if any, not being interested in watching TV. So my apartment building could be regulated like a cable TV franchise depending how the accept payment for the community satellite TV dishes (the shared dishes are so there's 1 or 2 or whatever number directTV dishes on the building, not perhaps 20 for each individual subscriber)

    Note that the city enforces its monopoly on cable franchises on pain of lawsuit from the cable co, so this might be a weird weapon for cable companies to eliminate satellite as competition in rentals. Or at least make it more of a PITA to use satellite, which is almost as good for them

    • (Score: 2) by theluggage on Wednesday June 25 2014, @08:25PM

      by theluggage (1797) on Wednesday June 25 2014, @08:25PM (#60044)

      Interesting thought experiment... Lease out thousands of tiny physical antennas, see what happens. Anytime you add a suffix of "over the internet" to anything, it totally confuses old gray/white hairs so removing it, might help them get it past their senility.

      So, after the law was changed in the 1970s, all the cable re-broadcast companies had to do to evade the law was to install a separate TV antenna and tuner for each customer?

      In this case, I'm afraid its you who are trying to argue "...but this is new and different because its on the Internet!".

      At worst, all SCOTUS did was save Congress the effort of slipping a quick loophole-blocking rider into the next fisheries and peanut farms bill.

      The beef here is the 1970s law defining re-transmission of free-to-air signals as copying. That's dumb. That's what needs fixing.

  • (Score: 0) by Anonymous Coward on Wednesday June 25 2014, @10:49PM

    by Anonymous Coward on Wednesday June 25 2014, @10:49PM (#60106)

    I thought this was innovative, and basically just taking the TIVo or slingbox approach online into the cloud.

    I disagree with the ruling, but alas, I'm no SCOTUS judge...