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posted by Dopefish on Friday February 21 2014, @12:00PM   Printer-friendly
from the what-doesn't-kill-you-makes-you-stronger dept.

Fluffeh writes:

"Although there are arguments scheduled for 22 April in the Supreme Court, US District Judge Dale Kimball of Utah ruled against Aereo which effectively bans it in Utah along with the rest of the 10th Circuit, which includes Wyoming, New Mexico, Oklahoma, and Colorado.

Kimball ruled that Aereo's retransmission of Plaintiffs' copyrighted programs "is indistinguishable from a cable company and falls squarely within the language of the Transmit Clause." He didn't buy Aereo's argument that its system of renting a tiny antenna to each customer allows it to avoid the "Transmit Clause" of the 1976 Copyright Act, which determines what kind of "transmissions" of copyrighted material must pay licensing fees."

 
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  • (Score: 5, Insightful) by bucc5062 on Friday February 21 2014, @12:23PM

    by bucc5062 (699) on Friday February 21 2014, @12:23PM (#4260)
    I went to the aereo website [aereo.com] to get a better handle on this for reading various links didn't make it clear. If I understand this, TV stations transmit, over the open airwaves, shows/news/mind numbing crap. This company developed an antenna that picks up these "free" signals (including commercials I figure) and transmits it to the "cloud" where you can then access said show. Now is the illegal copying of ... something.

    As I look at it, they are not so much making money off the redistribution of a show, they are making money off of the devices they sell. I feel like our court system is getting more out of touch when if comes to digital technology. What am I missing?
    --
    The more things change, the more they look the same
    • (Score: 5, Informative) by Twike on Friday February 21 2014, @01:03PM

      by Twike (483) <lure@comiclisting.info> on Friday February 21 2014, @01:03PM (#4269)

      A) I believe they make money by renting hardware and providing digital access to the output of the same.
      B) This may not align with the methods of tracking over-the-air usage(Nielson ratings)
      C) The TV stations are therefore probably not being paid for the additional viewership
      C.1) The viewership may not be in the area, essentially devaluing the commercials due to audience size not aligning with those geographically located near the businesses to which the commercials were sold
      C.2) The vierership may be not watching commercials for the area in which they are geographically located, possibly reducing the amount able to be charged by ohter staions which are located near the viewer.

      I think that about covers the arguments I've heard. I don't personally believe it, I think once you've broadcast it it should be "in the wild" and uncontrolable, but IANAL.

      • (Score: 3, Insightful) by monster on Friday February 21 2014, @02:03PM

        by monster (1260) on Friday February 21 2014, @02:03PM (#4293) Journal

        About point B...

        Nielsen ratings are crap. They were engineered a long, long time ago, when a typical household had at most ONE TV and watching TV was a family event. They have had a lot of problems transitioning to the current situation (several TVs per household, streaming, DVRs and later views, etc.) and it is used today only because of tradition (feel-good for the broadcasting execs) and lack of better budget options (phone interviews are expensive and prone to lying/false reporting and stream tracking is difficult unless you give full reporting power to the providers, who have a vetted interest in showing great results).

      • (Score: 2, Informative) by Maow on Friday February 21 2014, @02:32PM

        by Maow (8) on Friday February 21 2014, @02:32PM (#4316) Homepage

        C.1) The viewership may not be in the area, essentially devaluing the commercials due to audience size not aligning with those geographically located near the businesses to which the commercials were sold
        C.2) The vierership may be not watching commercials for the area in which they are geographically located, possibly reducing the amount able to be charged by ohter staions which are located near the viewer.

        I haven't looked into Aereo myself, but from my understanding, they do require their customers to be within the area they're subscribing to.

        i.e. Someone in Buffalo can't subscribe to New York TV via Aereo.

        Saw that on Ars Technica I believe.

      • (Score: 3, Interesting) by RedBear on Friday February 21 2014, @05:49PM

        by RedBear (1734) Subscriber Badge on Friday February 21 2014, @05:49PM (#4434)

        The part that makes this fuzzy for me is that Aereo is a commercial entity profiting off the rebroadcasting of someone else's content. This is why I can't fully buy into the argument that the broadcast content should be free once it's transmitted. Just because it's being broadcast over the public airwaves doesn't mean that anyone can record the broadcast and then sell it someone else. It's still copyrighted content. Go ahead and try reselling it yourself, see how fast you get locked up.

        The part about renting an individual antenna to each end user is, I think, just a silly technical quibble that doesn't particularly matter. The primary issue is that Aereo is making money rebroadcasting (and devaluing) someone else's content without permission. I may be the oddball on this issue but I'm having real difficulty understanding why Aereo shouldn't be required to pay the owners of the content to redistribute their content FOR A PROFIT. After all, I doubt anyone would be willing to pay Aereo to redistribute static. The redistribution of watchable content is what the users are paying money for. The fact that it is an unencrypted broadcast over public airwaves is completely beside the point as far as I'm concerned. The airwaves are public property, the specific copyrighted content is not. Unless they want to operate as some kind of non-profit co-op where each user owns (not rents) their own antenna and their piece of the necessary redistribution system, I think the whole concept is bogus.

        Oh yeah, and FRIST POST on SoylentNews! Schweet!

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        • (Score: 2, Insightful) by Angelwind on Friday February 21 2014, @07:08PM

          by Angelwind (1439) on Friday February 21 2014, @07:08PM (#4471)

          When VCRs came out for the masses, the broadcast companies tried to stop it because time shifting was akin to the Boston Strangler. And then the court said that it's fine (with the help of Mr. Fred Rogers himself making a case for being able to record his shows) and Hollywood discovered a new market for movies and TV shows.

          When Tivo came along they screamed just as loud because you could skip commercials. While you could fast forward past them on VCRs, you would still see the video you're going past. With a Tivo you only saw snippets of commercials as you jumped to the next segment of the show. Tivo eventually caved, but like the VCR no one was actually hurt.

          I see Aereo as a remote Tivo and should be treated as such. The only difference is that I'm renting the antenna and the equipment that is not physically at my house so I can watch their shows. They're using the Cablevison ruling as their basis, and I find it sound reasoning that I hope the Supreme Court goes with. Broadcasting is free-to-air and as long as they are not breaking any rules as far as public performances, and only I have access to my recordings, then they're not doing anything wrong except doing the hard work of getting me a good signal for my rented antenna (which is a huge pain in the first place and some days makes me miss analog) and giving me DVR functionality on top of it. I used to work in the TV industry so I know how advertising is needed for local stations to stay on the air, but when you look at the ratings for first time airings of prime time shows, I don't think Aereo is going to hurt them, and may actually help them in the long run, because people will finally be able to get their channels again.

          What broadcast companies are worried about is cable companies (and satellite when they do local channels) coming up with the same idea as Aereo and not having to have to pay retransmission fees because hey, tiny antennas for all our subscribers!

        • (Score: 4, Informative) by tynin on Friday February 21 2014, @07:23PM

          by tynin (2013) on Friday February 21 2014, @07:23PM (#4484) Journal

          Since you have to be in the area of the transmission for Aereo to resell it to you, who exactly do you think is there target audience? After all, the same people should be able to get these OTA for free.
           
          What this service is for, is for people who should have access to these TV transmissions already, but are for one reason or another, unable to get reception. There are many legitimate reasons that make it almost impossible to get reception depending on your geographic location, or if you are living in a building where putting up an antenna is illegal, or maybe you just get poor reception.
           
          These broadcasters are going to doing nothing to solve this TV equivalent of the ISP "last mile" problem, but they should. To me, this was nothing but fair competition coming in and filling in the gaps of other companies failure.

          • (Score: 1) by jonh on Friday February 21 2014, @09:17PM

            by jonh (733) on Friday February 21 2014, @09:17PM (#4552) Homepage

            The TV companies would much rather pretend that it's still 1950, and they sure as hell aren't going to spend any time or money looking into this fancy "computers" stuff to increase their viewership to include people who can't get a decent OTA signal, or want to watch their TV shows on their phone or laptop.

            But they're also damn sure that even though they're not interested in improving value to their customers, nobody else should be able to either. Why should they have to adapt their business to changing realities? There simply must be some kind of law against this kind of thing!

            </snarkasm>

        • (Score: 2, Informative) by dmc on Friday February 21 2014, @07:56PM

          by dmc (188) on Friday February 21 2014, @07:56PM (#4503)

          The part that makes this fuzzy for me is that Aereo is a commercial entity profiting off the rebroadcasting of someone else's content.

          This sentence would be a nice foundation, but I don't by the *re*broad*casting* word. "broad"casting seems to imply making something "broadly" available to others. From my (non-RTFA) gathering, this is only making it available to the same person who could have watched it at home instead. I'd call that "narrowcasting" myself.

          • (Score: 2, Insightful) by jonh on Friday February 21 2014, @09:28PM

            by jonh (733) on Friday February 21 2014, @09:28PM (#4558) Homepage
            It seems to me anyway, that if it's legal to run a business which rents VCR's or DVD players, then there shouldn't be any objections to running a business which rents what's essentially a tiny antenna plus a digital VCR. Aereo have clearly gone to some rather absurd lengths to stay within the confines of the law, such as it currently is.

            The fact that they seem to be profitable would indicate that there's a clear demand for the service they're providingthe TV comapanies could get rid of Aereo simply by competing with them and offering their OTA programming to viewers over the internet.

        • (Score: 3, Insightful) by davester666 on Friday February 21 2014, @08:57PM

          by davester666 (155) on Friday February 21 2014, @08:57PM (#4538)

          So, these OTA broadcasts from TV stations are for consumers to receive by their TV sets, right?

          So, customer buys TV set with a built-in Antennae.
          Gets crappy reception. But totally legal.
          Buys an antennae to sit on top of the TV.
          Still gets crappy reception. But totally legal.
          Hires somebody to install an antennae on a pole outside his house with coax cable to the tv.
          Finally gets good reception. Still totally legal.
          Buys a VCR and hooks it up to both antennae and tv, records shows and watches them later. Totally legal.

          I'm not exactly sure what the legal arguments the broadcasters are using [or what the problem the judge found],because the differences from the above setup to what Aereo is doing are:

          1) renting the use of a pair of antennae for you to use, from their office in the same city that you live in, where you select what channels they are tuned to, one for viewing, the other being recorded for you to watch later.
          2) sending the output of those antennae [either live or recorded] to your home through the internet instead of using a coax cable.

    • (Score: 1) by nightsky30 on Friday February 21 2014, @01:03PM

      by nightsky30 (1818) on Friday February 21 2014, @01:03PM (#4270)

      Agreed. I've not looked at what channels they have, but if they are simply capturing OTA broadcasts, that doesn't sound much like a cable company to me. Seems like a cloud based DVR service with a live streaming option once you buy their antenna product.

      Anyone could build a DVR using a tuner card, Linux, and MythTV with cable or a digital antenna. Hell, with that setup you could burn your DVR'ed stuff to DVD/Blu-ray. You could even write or find an app/plugin to remotely handle MythTV from your phone. The only thing they've done is add a cloud storage element, but you could do that too.

      • (Score: 2, Interesting) by monster on Friday February 21 2014, @02:13PM

        by monster (1260) on Friday February 21 2014, @02:13PM (#4302) Journal

        IP law is schizophrenic, and this is just another example.

        In Spain, for example, some of the free OTA channels are also broadcasted by the cable and satellite providers, but not all. You know why? Because some broadcasters said those providers had to pay to deliver those channels with their own equipment, even to subscribers that have no other option to view their channels (OTA range is not 100% of the country) and to those that do recieve them OTA, it's the same product. In other words, they not only help deliver the same (free) product to more viewers, and even subsidize it, helping the broadcasters get more viewers (and better ad deals), but are expected to pay the broadcasters for doing it!

        • (Score: 0) by Anonymous Coward on Sunday February 23 2014, @08:05AM

          by Anonymous Coward on Sunday February 23 2014, @08:05AM (#5115)

          Quit misusing the word "schizophrenic".

    • (Score: 1) by joshuajon on Friday February 21 2014, @03:02PM

      by joshuajon (807) on Friday February 21 2014, @03:02PM (#4342)
      Except like the Zediva service [arstechnica.com] I linked to in my earlier post, Aereo didn't give you the antenna. They rented you the antenna located on their premises, and the streaming service. So, while supposedly each subscriber is just utilizing a remote device streamed over the internet, in practice there may only be one antenna, one copy of the data, and countless streams - ie retransmission. I'm not saying I agree that they should be shut down, just that there is ample precedence to do so.
      • (Score: 2, Interesting) by dave on Friday February 21 2014, @07:39PM

        by dave (1351) on Friday February 21 2014, @07:39PM (#4495)

        To touch on this point; If the end user does not have direct point to point communication with the receiver (antenna), in the originally received format, isn't that inherent retransmission by Aereo?

        i.e. We're going from a digital signal over the air, then re-packaging that signal into another format. Digital OTA -> TCP\IP etc.

        Just to clarify, I don't think they should be shutdown... I'm "just sayin.."

        This biggest issue, of course, is that they're making money off of it without giving the content providers any kickbacks.

        --
        Nothing about you is permanent.
        • (Score: 1) by youngatheart on Thursday April 03 2014, @10:44PM

          by youngatheart (42) on Thursday April 03 2014, @10:44PM (#25910)

          The retransmission angle has bothered me for a while and I just saw this comment. I'm not really sure, but format shifting and non-commercial retransmission by the consumer is already allowed with VHS. The key loophole Aereo is exploiting is that the consumer is the one in control and ownership (?) of the equipment. I think this is going to be hard for the court to decide because the ownership question is tricky. I think I'd be legally allowed to rent a VCR to tape shows in an apartment and in that case I wouldn't own any of the equipment used to format shift and retransmit whatever I recorded with it. If SCOTUS judges against Aereo it will be interesting to see if they can do it without also making a lot of other currently legal actions suddenly illegal.

    • (Score: 1) by darinbob on Saturday February 22 2014, @12:29AM

      by darinbob (2593) on Saturday February 22 2014, @12:29AM (#4626)

      Television companies HATE time shifting. They have time sensitive advertisements they want to make money on, local area advertisements, and things like that. Time shifting or rebroadcasting screws up their nice tidy model. Plus it makes things too easy to skip commercials, ala ReplayTV.

  • (Score: 4, Insightful) by cockroach on Friday February 21 2014, @12:30PM

    by cockroach (2266) on Friday February 21 2014, @12:30PM (#4264)

    ... but it would be nice to have a word or two about who/what Aereo is in the summary.

    • (Score: 4, Interesting) by Fluffeh on Friday February 21 2014, @12:32PM

      by Fluffeh (954) Subscriber Badge on Friday February 21 2014, @12:32PM (#4265) Journal

      You know, that's a great point. I will try to keep this in mind the next time I submit a story :)

      • (Score: 1) by cockroach on Friday February 21 2014, @12:38PM

        by cockroach (2266) on Friday February 21 2014, @12:38PM (#4267)

        Heh, thanks, that would be appreciated!

    • (Score: 2, Informative) by SlimmPickens on Friday February 21 2014, @01:35PM

      by SlimmPickens (1056) on Friday February 21 2014, @01:35PM (#4280)

      I vaguely remember this from a green news site. Something about having a separate antenna for every customer was supposed to mean they could somehow avoid redistribution fees.

  • (Score: 2, Funny) by arlo5724 on Friday February 21 2014, @12:35PM

    by arlo5724 (510) on Friday February 21 2014, @12:35PM (#4266) Homepage

    At first I thought this was about Aero [wikipedia.org], which I don't necessarily hate or love, but apparently it's not that. Anyone care to fill me in?

    Also, as long as we are ruling against Aero, can we get a ruling against Metro?

    --
    ------------------------------------------
    Reality is not always probable, or likely.
    • (Score: 2, Informative) by nil on Friday February 21 2014, @03:58PM

      by nil (2468) on Friday February 21 2014, @03:58PM (#4383)

      There is a link in the summary. But just to save you some time:
      http://en.wikipedia.org/wiki/Aereo [wikipedia.org]

    • (Score: 1) by GeminiDomino on Friday February 21 2014, @03:58PM

      by GeminiDomino (661) on Friday February 21 2014, @03:58PM (#4386)

      Also, as long as we are ruling against Aero, can we get a ruling against Metro?

      "It stinks" -- Jay Sherman

      --
      "We've been attacked by the intelligent, educated segment of our culture"
  • (Score: 5, Informative) by joshuajon on Friday February 21 2014, @01:54PM

    by joshuajon (807) on Friday February 21 2014, @01:54PM (#4288)
    There was a similar service shut down in 2011 called Zediva that was streaming movies. They argued that having a physical DVD player and a disc dedicated to each stream meant that they were no different from a traditional rental service. This Arstechnica article [arstechnica.com] goes into more detail and cites early precedent about a similar system using VHS to distribute PPV movies in hotels.
  • (Score: 5, Insightful) by Schafer2 on Friday February 21 2014, @03:03PM

    by Schafer2 (348) Subscriber Badge on Friday February 21 2014, @03:03PM (#4343)
    Judge Dale Kimball? That rings a bell...

    Yep, Judge Dale A. Kimball of Utah that presided over SCO vs. IBM and SCO vs. Novell. The one that said:

    "Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the UNIX software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities."

    I thought he was pretty sharp at the time.
  • (Score: 5, Informative) by randmcnatt on Friday February 21 2014, @05:56PM

    by randmcnatt (671) on Friday February 21 2014, @05:56PM (#4437)
    According to a recent article by Devlin Hartline [lawtheories.com] the real issue before the courts is one of 'public' vs 'private' performance:

    The Copyright Act gives copyright owners the exclusive right 'to perform the copyrighted work publicly.'

    The Transmit Clause tells us that several distinct transmissions of a performance to the public...can be aggregated together as constituting one single public performance.

    Aereo...argues that its distinct transmissions to its customers should not be aggregated, and this would mean that there are several performances which are all private.

    If the Court declares them private, Aereo is in the clear, otherwise the media corps win.

    --
    The Wright brothers were not the first to fly: they were the first to land.