1. They place an antenna in the same market as the subscribers, and don't stream content from one market to a viewer in a different market
2. They're nonprofit, which I guess changes the rules on this type of activity?
I hope he does get sued, and wins. This seems to be analogous to time-shifting your content using a VCR (now DVR), except it's space-shifting your antenna instead.
IIRC, Aereo had distinct aerials per customer (at-a-time -- they oversubscribed/multiplexed them).
> 2. They're nonprofit, which I guess changes the rules on this type of activity?
Not really in terms of the statutes AFAIK, but it likely does change the specifics of the debate ever-so-slightly.
Presumably the fair use doctrine is most pertinent aspect applied here and the first part of section 107 explains that: "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes."[1] would be considered in determining compliance with the applicable statues of the law.
This is the statute Locast is relying on. “(5) the secondary transmission is not made by a cable system but is made by a governmental body, or other nonprofit organization, without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service.”
Aereo obviously couldn’t take advantage of this since they were for profit.