A $795M analogy: Locast, broadcast copyright, and the fall of big antenna
ravik.substack.com
ravik.substack.com
I think the Supreme Court is going to continue to rule that neat hacks are not really going to get you out of what the law says, but also that the "content producers" are not going to be able to arbitrarily restrict a reasonable service as in the Cablevision case.
What the public really wants is a way to enable the thing they want without either exorbitant costs or heavy annoyances. We're not getting that because the system is not set up for automating micropayments or microdonations and the big operators are writing all the rules. For example, if I pay for a streaming service and listen only to one obscure band, I would expect that my monthly fee would go to them. Instead it goes to the top 100 and a tiny fraction goes to my obscure band, who really don't benefit at all from being on the service. If I had a micropayment platform, my consumption could be going to that band with a fraction going to support the platform.
In other words, record companies are killing music, and it's legal. That's what we need to fix.
Record companies are paying for the music. It takes a lot of money to produce tracks. Most artists never get enough fans or sales to pay off the investment the record company made in them, so the hits very much pay for the failures.
Even Justin Bieber, Lorde, and Billy Eilish depended on record labels to actually profit from their music, though they all broke out on social media platforms on their own.
The barrier has never been lower indeed, but it's the barrier to get started and it's still easily a many-thousand-dollars affair - a good recording and Soundcloud isn't everything you need to make money, especially not on a scale you'll be able to make a living from. Production of physical media (especially currently en vogue vinyls) is expensive plus there is a very real "inventory risk" (aka, the risk of being stuck with a truckload of vinyls no one wants to buy). Events and concerts are expensive AF to set up if you want more than your local community center or pub, touring is even harder to pull off (and the bigger the venue the more expensive the upfront, non-refundable costs go).
Most small cover and indie bands barely make ends meet, most work full-time jobs to finance their band hobby and spend sometimes their entire weekends and vacation time because they have to do lighting, rigging and sound system setup themselves wherever they get a gig. And corona has raided everyone's funds dry.
Not to say big studios aren't a bunch of unscrupulous, exploitative vipers because they are, but unfortunately their business model is far from dead.
(Source: know people still in this business, did myself a stint as a stagehand and as a renter of my small scale sound/light setup a couple years ago)
What I was highlighting is now the money doesn't even pay directly down the line. The long tail literally makes nothing from people directly deciding to support them by choosing their recorded music. At lest before, if a small band sold 1000 CDs, they'd see the royalties from that.
The courts do not care how the copy was made, they care about what markets the copying would allow someone to get into. "Cloud DVRs are OK but only if the kernel, filesystem, and hardware take great pains to ensure separate physical storage locations for and no compression on each customer-created copy" is absurd and no judge is going to go for that.
No, the courts aren't saying "if you waste a bunch of money on extra hard drives, you can infringe copyright", either. Their concern is providing a demarcation line between "things the customer has done with your service" and "things your service provides on it's own". Yes, this line is going to be fuzzy, but it's fuzziness has nothing to do with how the bits are stored. It has to do with the context of the markets in which works are ordinarily sold.
>I originally thought the strangeness of digital copyright outcomes reflected a lack of technical literacy in the courts. But for the most part, I find the Aereo discussion shows general digital competency, and an appropriate aesthetic disgust for the “identical bits are different” problem.
Remember how after the Napster lawsuit, everyone was parroting the thought-terminating cliche "the law needs to catch up to technology"? Yeah... no. In reality the law is almost always three steps ahead of technology, because the law is written in a programming language that executes what you intended to write, not what you actually wrote.
As I mentioned, I am willing to admit that I came into this expecting to find technical illiteracy, and I didn't find much. I agree that the mindset to look for hacks and oversights in laws is a naieve engineer tendency.
> No, the courts aren't saying "if you waste a bunch of money on extra hard drives, you can infringe copyright", either.
I agree no court wants this, and I didn't intend to imply otherwise in the post. Regardless, as a result of these cases, this is the current state the DVR industry is in as I understand. Wasting money on storage does insulate you from infringement, and people do it to be safe.
> a programming language that executes what you intended to write, not what you actually wrote
This is a great analogy. It does clearly get more complex when the court is executing "what you would have intended had you known about the internet" though.
Edit: On,
> The courts do not care how the copy was made
In Cablevision, they did for two reasons:
1. To figure out whether buffering was copying, which is a very technical discussion. See the footnote on MAI Systems
2. To figure out WHO was making the copy, for the volition based infringement test
My point here is that it really does get into the technical weeds. I know your point was mostly to just dismiss the deduplication discussion, which is reasonable. If one of my posed problems made it to court, the court would probably just do the "right thing". However, since they haven't made it to court yet, companies don't necessarily want to be the first to gamble on it.
Cablevision is absolutely by its terms hugely reliant on the nitty-gritty technical details of how the DVR service there worked. The court had to kind of wind itself up in knots to work around the existing MAI v. Peak precedent (copies to RAM are actionable infringing copies) and the fact that the service existed just to make these copies, so it gets very in the weeds on how things are stored and the amount of time things are in buffers and so on.
Ultimately, it's probably true the most important thing was that Cablevision were an established player in an existing, uncontroversial market and they were making an iteration on the already allowed and understood "time-shifting" recording systems. But other players in the market shouldn't really be faulted for taking the court at its word that the details actually mattered. Sometimes they really do!
MAI v. Peak, mentioned in the article and above in my comment is a great example of that: the 9th Circuit holds that a computer copying the OS into RAM is a "copy" for the Copyright Act, thanks to the statutory definition of a work being "fixed." Result: a repair technician violates copyright by turning on the computer because he doesn't have a license. This is kind of the polar opposite type of decision to, say, Aereo's case: it's actually quite disruptive but hinges more on the literal definitions in the law and things like the computer not being on already, thus requiring the "copy" to be made. Congress actually changed the Copyright Act to counter this decision but in an extremely specific way, so the general "stuff in RAM is fixed and therefore a copy" principle remains and comes up often.
Aereo lost because they would upset the applecart of retransmission fees, Locast similarly though for nominally quite different reasons. It can be quite difficult to tell in advance if you're going to get a "letter of the law" decision from the courts or something more results-oriented, even from the same court.
An often-unappreciated wrinkle is the more or less total dysfunction of Congress leading to court decisions taking on ever more importance. The courts themselves aren't blind to this, leading probably to more results-oriented decisionmaking than there might be otherwise.
So why is it always interpreted in favour of what content distributors intend and never in favour of common sense or the public? Laws are a public contract and as such the public, including you, has the right to push for its interpretation one way with judges having the ultimate authority to resolve disagreements. Just because you look at things from a logical perspective doesn't make you unfit to argue for your rights, and claiming otherwise strikes me as a really self destructive mix of learned helplessness and impostor syndrome.
Reminds me of Aereo, the company that rented remote antennas to customers so that they can stream over the Internet what their antennas captured. Supreme court decided that they were violating copyright law [0].
[0] https://arstechnica.com/tech-policy/2014/06/supreme-court-pu...
In practice, the process for this is completely broken, so we have a system where the judicial branch pretends to divinate intent from the tea-leaves of legislation, even when it's clear that there could not possibly have been any informed intent because major relevant details were simply not known at the time.
It's not great, but it's better than a system where the judicial branch just does anything it wants.
All this said, instant communication and computers almost certainly introduced better forms of judicial and legislative process that haven't been experimented with because of inertia. I wouldn't volunteer our system as the guinea pig, but I hope that somebody gets around to experimenting with this, because our system sucks hard in a bunch of ways that seem like they are probably fixable.
It's awesome how Aereo's efforts to obey the law are what the court didn't like.
> CHIEF JUSTICE ROBERTS: All I'm trying to get at, and I'm not saying it's outcome determinative or necessarily bad, I'm just saying your technological model is based solely on circumventing legal prohibitions that you don't want to comply with, which is fine. I mean, that's you know, lawyers do that.
Puffer is probably that: https://puffer.stanford.edu/
I had a decent experience switching to using the Tablo Dual Lite. It's a local TV tuner and DVR. Mine has 2 tuners, but they also a 4 tuner device.
It does, unlike Locast, require fiddling around with an antenna, but I guess the upside is that nobody can sue it into oblivion.
It does require a subscription for the guide ($5/month) and for the built-in commercial skip (another $5/month), which isn't terrific. But, the UI and the DVR seem more polished than what I was getting using Locast with Stremium (cloud DVR) before. It does take a few seconds to tune into a channel also, which can be annoying.
However, I just got an antenna ($80) and had it installed on my roof. 40 miles or so to Twin Peaks' antennas, no obstacles. Boom: 800 channels (some paywalled), many in languages other than English.
Next is to roll my own DVR. Should be easy, right?
> However...
I don't mean to be uncharitable, but the "however" you wrote is doing a lot of the work here. A lot of people are saying that Locast is pointless or not a big deal because, well, they put up an antenna and it worked so no problem.
Except that it is a problem. I used Locast from the day it became available in Seattle because, try as I might, I could not get reception from all of the TV channels. Standalone house, apartment, low to the ground, high up, didn't matter. There are three broadcasting sites in Puget Sound and the best I could do was 1 reliable, 1 iffy, and 1 not at all.
> Should be easy, right?
Should be, but isn't if you can't get signal. Locast offered that signal (Comcast charges about $19 a month for the privilege of having a plan with just local channels but also charges $19 a month as a broadcast channels surcharge) for a nice donation.
You are, though. I'm so sorry this happened to you. It must be awful for you. I'll try to never mention anything good that happened to me, ever again.
i was using locast as my "antennae" until weeks ago. my wife refuses to let me put an antennae on the roof or inside for aesthetics so its back to cable card from the darn cable company.
But the big part of the ruling was that it wasn't just how they requested funding, but the why. The ruling argued that collecting funds to expand more throughout the US was not valid for their non-profit status for some reason that made no sense. And as a result, it appears that a replacement will never exist, because the cost of pulling all of these channels with careful and specific antenna placement in a city, the hardware to pull all of those channels in real time, re-encoding the feed from MPEG2 to HLS/MP4 for the web, potentially making different qualities to account for network conditions (can't remember if the M3U8 playlists from Locast did that or not), and the networking costs of transmitting video are expensive.
And the lawsuit was stupid too. US TV channels are crammed to the max with advertisements, so much so that it feels more like an ad delivery mechanism than an entertainment delivery system. Locast could have been advantageous as they would have actual data of who is watching what when and where. Ad companies love that data, and with traditional OTA feeds, they don't have that. Instead, all of these OTA companies actively refuse offering the ability to watch their streams online for free. Other than local news content, everything else is locked behind a paywall of having an active cable subscription. Why should I, as a consumer, pay $100 a month to watch this same OTA content, just so I can watch it online, especially for a medium so jam packed with ads?
I live in the edge of Columbus, Ohio in an apartment. I'm still within 10 miles of the transmitters for the big 6 stations (the local affiliates of ABC, NBC, CBS, FOX, CW, and PBS collectively only use 4 transmitters.). My apartment is luckily facing sort of line of site to most of those transmitters. But even then, I still have bad signal issues with those channels, and in some cases leading to an unwatchable recording. The signal was bad enough that my recording of the 2020 Tokyo Olympic Opening Ceremonies was bared by loss of 2 to 5 seconds of video and audio every 2 minutes. My only alternative was to play $65 to $100 a month to cable or cordcutting subscription to watch that broadcast online. And out of spite for continuing to shutdown any free way to watch their OTA content online, I will _never_ pay. Our laws regarding OTA broadcasts and how people can use and view them need to change ASAP, otherwise what is the point of having them if is not accessible to all.
The networks can be shitty to their non-owned-and operated stations too. The long-term local ABC affiliate got shafted a few years back. They’d been an affiliate since 1969. ABC demanded a substantially larger amount of money to renew the affiliation than they had in the past. The station initially tried to negotiate the amount down, ABC refused to budge. After careful consideration, the station decided to nonetheless agree to ABC’s demands. After all that, ABC still turned around and basically said “nah, forget it” and went with their direct competitor in the market, who already operated the CBS affiliate. ABC and CBS are now subchannels of the same broadcaster, who happens to be owned by one of the larger station groups. The networks do this because it gives the stations more leverage to demand more from operators, and the station groups have more capital than smaller independently-owned stations. The networks also directly benefit, as the stations in the larger, more flagship markets tends to be network owned and operated (O&O). A station group that says “we own X number of stations and unless you pay us more money, we’ll restrict your carriage of all of them” has a lot more pull than a company that owns one station.
There is actually a choice, but it’s on the broadcaster’s end. A station can elect to choose “must-carry” status, where the operator transmits the signal with no compensation (which generally only applies to a station’s primary subchannel), or a station can demand payment for retransmission.
If cable was invented today, the networks would have it shut down in a hot minute.
They probably have exclusivity contracts with the cable providers. They're sliding into irrelevance already, but will probably make their services completely available on the internet a few years after their slide into total irrelevance is complete.
The law granting them the exception from copyright law that would have allowed them to stream in the first place strictly limited the way funds could be raised and spent by entities claiming the non-profit exemption.
The law is several decades old, and predates the internet. It wasn't the subject of regulatory capture by the cable companies, who were in their infancy when the law was first passed.
Locast chose not to operate like a non-profit, and made a profit on their streaming services, in violation of the law. It's really that simple.
Isn't that a valid use of the non-profit status? That as long as the funding from donations was going towards that expansion only, it can still be considered a non-profit? Looking at the quick Wikipedia definition, that seems to be the case, if you consider Locast's mission is to provide retransmission of OTA broadcasts to all people in the US.
> "A second misconception is that nonprofit organizations may not make a profit. Although the goal of nonprofits isn't specifically to maximize profits, they still have to operate as a fiscally responsible business. They must manage their income (both grants and donations and income from services) and expenses so as to remain a fiscally viable entity. Nonprofits have the responsibility of focusing on being professional, financially responsible, replacing self-interest and profit motive with mission motive." [1]
PBS is also a non-profit, but PBS does something similar in that certain content is locked behind their "PBS Passport" subscription. If this ruling that requiring donations view without interruption, then PBS is also violating non-profit status based on your statement regarding "Locast chose not to operate like a non-profit." But Locast attempted to resolve that and remove the interruptions entirely, but was still required to completely shutdown and was given 0 chance to adjust... My understanding about hte reasoning for shutting down is that using collected funds, via any means, expansion across the US isn't allowed for some questionable reason under the section of the law Locast was using.
[1]: https://en.wikipedia.org/wiki/Nonprofit_organization#Managem...
1) No, it's not a valid use of the money under the restrictions of the non-profit exemption from copyright for re-transmission. The law is quite clear on this point: revenues derived from the violating service must not exceed the actual costs of providing that service. Expansion costs are not related to the costs of providing existing service, therefore they are not permitted under the exemption.
3) PBS is not even remotely the same thing, because it's not the non-profit status that is at issue. PBS owns and/or licenses the content they broadcast and stream, so it does not need an exemption from copyright laws. Locast does not own or license the content it streams, so it does need the exemption, and it violated the explicit requirements for the exemption it needed.
4) But Locast attempted to resolve that and remove the interruptions entirely, but was still required to completely shutdown and was given 0 chance to adjust Historically, using someone's IP without their permission resulted in statutory damages, and Locast should consider themselves lucky they're not on the hook for those, as statutory damages for copyright law can be as much as $150,000 per violation* for willful violations of copyright law. * Tech was able to get away with the ask for forgiveness business model for 3 decades, but generally the law does not operate on "ask for forgiveness" basis. It's irrelevant that they got "0 chance" to adjust since the onus was on them to plan their activities in a way that complied with the law.