Appeals court upholds legality of Aereo’s “tiny antennas” scheme
arstechnica.com
arstechnica.com
IE By complying with the exact requirements of the law, they are committing a sham.
It's a policy argument, not a legal one.
A sham is doing something like "i'll sell my brother my house for $1". That's a sham. You are doing something to try to trivially comply with contracts law (which requires adequate consideration), but the $1 you are giving is really trying to cover up the fact that it's really a gift.
But that's not the argument the dissent makes, the argument it makes is "i don't like this behavior, so i will villify it" and act like it's a sham. The law imposes plenty of technical barriers to doing things. I could make an amazing wireless system if i could use whatever transmitter power i liked, but the law prevents me. The fact that they could use one large antenna is exactly right, but it changes nothing, because the law appears to prevents them from doing so. Following the technical requirements of FCC law is not a sham, it's "what the law requires you do". Following the technical requirements of copyright law is not a sham, it's "what the law requires you do".
The problem here is: what does "public performance" mean in the context of internet broadcasts? Cablevision just covers that consideration with mud. The answer is probably: the distinction of "public performance" is completely meaningless when talking about internet streams.
TLDR of the opinion for the rest of HN:
"Public performances" are subject to copyright protection. The Copyright Act says: "To perform or display a work 'publicly' means to transmit or otherwise communicate a performance or display of the work to a [public place] or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." That last part was written specifically so that cable companies are engaged in public performances (three boos for Congressional idiots who write laws specific to one technological era and then don't update them).
The majority says because that sentence talks about public transmission, it implies there's such a thing as private transmission. And transmission of a unique server copy to a specific customer is a private transmission. (See pp. 29-30.) They think this case is about a "rooftop antenna [that] is rented from Aereo and its signals transmitted over the internet."
The dissenter says that "public performance" includes any stream whose fundamental purpose is to retransmit live TV to a large audience. And that's what he thinks Aereo is doing. (See pp. 49-50.) He thinks Aereo is functionally doing the same thing as a cable company, and that "Congress made clear its intent to [cover] ... 'all conceivable forms and combinations of wires and wireless communications media,'" so it doesn't matter whether there's a private copy on the server or not.
(Link to opinion: http://www.ca2.uscourts.gov/decisions/isysquery/82dcbc3a-986...)
Yes. http://www.techdirt.com/articles/20110802/02374615353/court-...
Sorry, but just because something is "your" content doesn't mean you should be guaranteed to make money off of it, or control every aspect of it.
For example, if I set up a stand on a street corner that creates an amazing aromas, it would not suddenly become my right to charge passersby for smelling these aromas, even though they are "mine". Rather than trying to get the law changed to guarantee I make money, I should instead modify my business model to one that doesn't suck.
Nobody is entitled to a non-threatened business model. At the same time, Congress is entitled to limit unfair competition and free-riding off peoples' work, and in this case it has seen fit to do so. That's the crucial distinction that anti-copyright folks ignore. This isn't just about protecting a business model from technological change. It's about protecting a business model against a different business model: profiting from selling content you didn't create and didn't pay for.
It would be one thing if nobody wanted to watch big-budget Hollywood movies anymore, and MPAA were lobbying for laws to shut down P2P and Youtube so indie content producers couldn't distribute the movies that people did want to watch. But that's not what's happening here. Demand for Hollywood movies has never been higher, and despite a total lack of legal roadblocks, indie content has not become popular hardly at all.
What's happening is that companies like Youtube and Aereo, etc, have figured out there is profit to be made by being middle-men between the big-budget Hollywood content people demand and the consumers. Ideally, for them, there would be no copyright so they could get content for free attract viewers to peddle their advertising to.
It's one thing to prop up your business model against technological obsolescence that eliminates demand for your product. It's another thing to protect your rights against people free-riding on your creations, creations for which demand is higher than ever.
> For example, if I set up a stand on a street corner that creates an amazing aromas, it would not suddenly become my right to charge passersby for smelling these aromas, even though they are "mine".
But could you sue someone for putting up a big fan to blow the aroma into the air and charging people to stand in front?
I get it. People make content, and they want their rightful monopolies to be protected from people who would copy and sell it. That's fine. But attacking the rights of those who are not copying or profiting from your content simply because the new method they're using to access it doesn't line your pockets with money is going too far. At that point you're going after all competition, rather than unfair competition.
You have no guaranteed right to a lucrative business model. You have no guaranteed right the control any and all actions of those with access to your content. The only thing you should have is the limited monopoly you've been given, and if that isn't enough to protect your business against the the onslaught of new technologies then so be it. (I should point out that I think the length of the monopolies themselves has gone overboard, but that's an argument for another day.)
> But could you sue someone for putting up a big fan to blow the aroma into the air and charging people to stand in front?
No, I don't think I should be able to sue. It's my own horrible business decision to release my aromas into the public air where everyone can access them. If I were a more astute businessman, I would keep my aromas in a privately-owned enclosure where I could create the rules and charge admission to boot.
I don't see how it's the government's place to step in and create laws that curtail the public's right to use the air as it pleases for no other purpose than to ensure that my crappy business model is lucrative.
Just because that's what the constitution says, doesn't mean that that's the real purpose.
Even if both the industry and congress want and intend other purposes, the constitution allows copyrights to exist only if/while they (at least a bit) also try "to promote the progress of the arts and sciences".
Most anti-copyright folks such as you describe them would welcome stated goals. Preventing unfair competition by state intervention is a fine goal. Lets do that, but then lets also apply 21st century governmental procedure rather than 18th century ones. The steps are quite easy: First you do a cost-benefit analyses such as determining cost and benefit. You ask what the cost to society is. Then you ask questions like how much protections vs how much costs. Is 3 years enough to prevent 90% of the unfair competition? Would 2 more years make that number reach 99%? Maybe a whole 10 years for special products needing special state attention?
Cost-benefit analyses. A tool made in the 19th century, was the tool that made 20th century government, and the only two laws not still using it is copyright and patent law. There is nothing to justify such bad use of state power to intervene in the market.
How do you count "unfair competition"? how do you define "special products"? How do you even count the revenue of a hypothetical work before its even made?
The neighborhood coffee shop is not entitled to prevent Starbucks from opening across the street. It is entitled to protection from people throwing bricks through its windows.
Similarly: movie studios are not entitled to use their market power to prevent people from recruiting from the vast population of talented underutilized actors to make content under more consumer-friendly terms. But they are entitled to protection from other companies that would take the content they paid to generate to slap unauthorized advertising on it.
So you'd be cool if someone ripped off your source code at siasto.com and started charging for the service? Good to know!
For example, if I set up a stand on a street corner that creates an amazing aromas, it would not suddenly become my right to charge passersby for smelling these aromas, even though they are "mine".
/facepalm
That's not how analogies work - you're supposed to invoke a prallel situation as I did above, not a completely different one. If you play your original music compositions on the street corner you can't just demand money for it even though pasers-by may be consuming and enjoying it. But if I copy your work and start charging people to listen to/inhale it, then you're infringing.
Rather than trying to get the law changed to guarantee I make money, I should instead modify my business model to one that doesn't suck.
What you actually need is one that doesn't blow.
Invalid analogy. Siasto does not sell or distribute its source code. Quite the opposite: our code is locked away on a privately-owned server. You'd have to illegally force your way into this server to access the code. What we sell is a service that happens to depend on this code.
And no, I would have no problem whatsoever if you cloned our service and attempted to sell it to others. In a general sense, we certainly aren't the only team collaboration software out there. And in a specific sense, we certainly didn't pioneer the vast majority of the visual interactions that define our service.
> But if I copy your work and start charging people to listen to/inhale it, then you're infringing.
Yes, but the company in question is not making copies. Hence the separate antennae and storage for each customer.
> What you actually need is one that doesn't blow.
:-D
Not at all. An employee of yours might decide to copy it, you might accidentally expose it in the future, or whatever. It seems you're making the argument that only what you can keep secret is yours.
But to align it more easily with reality, are you saying you'd be cool if I started copying your blog posts or the design of your site, which are published to the world?
I would have no problem whatsoever if you cloned our service and attempted to sell it to others
Assuming I wanted to do that, are you saying you'd be completely OK with it being copied down to the last degree? I find this hard to believe.
Yes, but the company in question is not making copies. Hence the separate antennae and storage for each customer.
I don't have a major issue with this particular legal decision. I'm just taking issue with your notion that being the originator of content provides you with few or no rights over it. I really don't see any similarity with your street-corner analogy.
I'm glad you got the pun though :-)
Employees (or anyone else for that matter) can be held liable for breaking contracts. And if my own negligence exposed my hidden code to the world, then so be it.
> It seems you're making the argument that only what you can keep secret is yours. But to align it more easily with reality, are you saying you'd be cool if I started copying your blog posts or the design of your site, which are published to the world?
Sure, if you're willing to do all that engineering yourself, go for it. I don't think it will pay off for you. (In tech it's better to differentiate.) Nor do I think will hurt my company. (Au contraire, it's likely an HNer will discover the copying and post about it, resulting in positive publicity for Siasto.)
I do not sell HTML, CSS, or JavaScript. I do not sell blog posts. I'm not in the content business, because I think it's a shitty business to be in.
> I don't have a major issue with this particular legal decision. I'm just taking issue with your notion that being the originator of content provides you with few or no rights over it. I really don't see any similarity with your street-corner analogy.
Being the originator of content provides you with a limited monopoly over it. It should not, however, make you all-powerful. As long as I'm not engaging in unfair competition (e.g. copying and selling your content en masse), you shouldn't get to tell me what I can and can't do with it. If I want to hold readings of your book in my home, or distribute free copies of your movies to my friends, then I should be able to do that. And if you don't like the fact that this makes your business less profitable, then get a better business model.
That's not too much to ask. Live performances make tons of money. So do movie theaters. And individual paintings by artists. Some forms of content production can be lucrative. I just don't like my rights as an individual being unduly curtailed simply to turn someone's poor business model into a good one.
Where does this right come from? People have some intuition about stealing physical things, but many areas of law involve intangible entities. In your example of suing an employee for releasing source code in violation of an agreement, you are using law to effect an outcome that is every bit as abstracted as copyright law.
There is also an aspect of arbitrariness to most law that can be annoying but it serves a function.
I don't think that a law is unjust simply because it deals with intangibles. I simply think that copyright/patent law lend themselves easily to abuse.
Aereo's technology is not standalone. They are using the Internet to do exactly what the Internet is supposed to be used for, which is the sharing of computing resources. This is a debate about whether or not that kind of technology is acceptable, not about whether or not antenna arrays are acceptable. There would have been no antenna arrays if the copyright lobbyists had been shown the door; we got to this point because outdated industries want to stop technological progress that threatens their antiquated business models.
The internet is already a distribution system for entertainment. I don't see the MPAA/RIAA suing Youtube because people are posting funny videos of their cat on there. They're suing to keep the internet from being a distribution system for the entertainment they create.
> Aereo's technology is not standalone. They are using the Internet to do exactly what the Internet is supposed to be used for, which is the sharing of computing resources.
Aereo didn't get sued for its technology. If they had been broadcasting their own content nobody would've cared.
Look at it another way: where is all the wonderful Kickstarter-funded, Creative Commons-licensed, torrent-seeded content that everyone is just dying to watch? There are zero legal hurdles to replacing the existing content industry if you can come up with a product people actually want.
So you've never seen this image before?
http://blog.asmallorange.com/wp-content/uploads/youtube-copy...
If YouTube weren't afraid of being sued by the MPAA, RIAA, or TV producers, why would they remove allegedly infringing content and replace it with these claim notices?
scarcity of option to format change, timeshifts, rebroadcasting, and choice.
Broadcast tv (discounting DVR's) has set times for set programs, and i do not want that - it was only recently that recording broadcast TV was made legal in australia (can't recall how long ago off top of my head).
Eventually rightsholders, legislators, judges, and even attorneys will come to understand that simple truth.
In modern society, the laws of the land are enforced under physical duress by the police (and sometimes military). If you break a law, the might of the nation will physically detain you and lock you in a room for years, or even kill you outright, depending on the conditions of the violation.
The question is, who's might makes right - does 'society', in control of the police and the 'might' side with 'culture' or 'business' in these cases?
And even if hobbyists do design say sports coupes, will they also design say minivans? If they don't, that's a market failure--there is a demand for minivans, and people capable of designing minivans, but no way to monetize the designs hence no minivans.
My hope would be that everyone keeps a level head about 3d printing and thinks before going nuclear^W legal.
In answer to your question "What happens when it does become possible to download and print cars?": barring hyperactive lawyers overreacting, probably very little of any consequence.
When downloading digital media, the reproduction is perfect, and takes no effort. Current home kits for making things are far from perfect, and takes a lot more effort in comparison to digital media reproduction. This is why 3D printing hasn't really taken off. When the day you can recreate a perfect car/bike/toaster like the one you buy from a shop, printed at home with a click of a button, then you'd see the car manufacturers sueing people for laser scanning their model/designs and uploading it - just the same as the media conglomerates doing so right now.
When the masses can perform what used to be the domain of the specialists, the specialists would necessarily have to disappear.
Lets think about this though, how are you going to print a vulcanized rubber tire? How are you going to print an engine block, a car body, and a windshield?
Okay okay, lets say that in some sort of manufacturing singularity we can print all of those things... cars are still big, and this printer is going to be big as well. Where do we do this? In my garage? Well, I don't have a garage, I have a shared parking garage, but lets say I had a two car garage. One space for the printer, one space for the car. Printer prints all of my parts, I assemble (okay, perhaps I have robots (printed? themselves robot assembled?) strong enough to assemble it), fill it with fluids, and drive off into the sunset. Was all of that equipment used to print and assemble it generic? Do I have other uses for car-building sized printers and robots, or is that just wasted space in my garage now? Do I grind all that stuff down into printer food? How long does that take? How long did that stuff take to print in the first place? How long did my car take to print? Hell, where did I even get the material to build all of that stuff in the first place, and where do I put the printer food when I'm done? Do I order up a few tons of steel and have them come back a few weeks later to pick up the barrels of steel chips when I'm done?
This all seems pretty intensive just for one car, but there are some obvious improvements that can be made. For instance, instead of doing all of that work for just one car, I could print out two cars instead. Setup/demo time would be the same, so it would be more efficient. Now I don't need two cars, so maybe I could sell one of them to my non-hypothetical self who doesn't have a two car garage in the first place. Hell, we can even do better than that still; my neighbor Joey doesn't really feel like clearing out his garage (his printed model trainset is in the way), so I'll print and sell him a car too. In fact, maybe I'll print one for the whole neighborhood... maybe I'll rent out some larger space than my spare garage space to do this, get a few production lines going in parallel...
Oh shit, I just re-invented the wheel.
3d printers will take off, but they will nevertheless not represent a threat to the concept of centralized production. Only profoundly incompetent companies will be threatened. Any other company that resorts to lawyers will be overreacting.
If the price of building a small factory dropped enough, maybe your local library/school would have an open factory space where people go to print custom cars.
If you don't want a custom car, it'd probably be cheaper to buy one though (partially because the availability of such printing would force manufacturers to drop prices).
So, you'd rather pay for Unix than be stuck with the way companies of monetized Linux? It's not always about monetizing the product as it is about monetizing the complementary service or product.
Sigh. Yes, and nuclear weapons are also a useful subject to raise when arguing about gun control.
What we're seeing here is the social pressure that will drive that change, for better or worse.
As for copyright being recent: there have been protections against copying creative works pretty much as long as it's been possible to copy creative works. In Britain, within 50 years or so of printing presses proliferating in the country, printing became the subject of government-granted monopolies (only those with a charter could print). Copyright was introduced in surprisingly recognizable form with the Statute of Anne in 1710.
Funny how in ancient times, there were cities that required that any books brought into the city be copied and stored in the library. It was because of the copying activities of monks and scholars that we have man ancient works, and nobody complained about them copying things.
Restrictions on copying entered the picture because of censorship. You talk about the pre-Statute of Anne copying restrictions as though they had anything to do with the creators of written works; those restrictions existed solely for the purpose of censoring authors. The side of effect of those approaches in English law was the creation of a large, powerful publishing monopoly, which is how the Statute of Anne was created in the first place (the lobbying effort was led by and almost entirely consisted of the businesses that had benefited from the previous system).
Point for discussion: if life has a purpose at all, then that purpose can be phrased as "Making copies."
As for recently, since the creation of the cosntitution creators have been granted copyrights 'for limited times'; No matter how much you hate the fact that Disney is still claiming copyright on materials almost a century old, retransmission of TV happens over such a short timeframe that it surely falls within a reasonable definition of 'limited times.'
In that case, the Big Owners are already giving it away for free in New York and nobody gets hurt, if people somewhere else see it for money, right?
Calling copyright a property is an simplification. Copyright is an state enforced monopoly, given as a privilege by the state to the author. Privileges is not properties, and as thus have no property rights attached to them.
Copyright is not different from any other state given privilege. Some people has got permissions to sell drugs, produce weapons or export particular products to specific countries. Neither of those privileges are "rights".
Of course, we can turn this around and say that all property right is privileges given by the state (as they are the only one enforcing the law). However, this kind of thinking would then require one to accept that property, like that car parked in the house, is property owned by the state and given as an privilege to someone they define as an owner. It leads to a place where we are better off defining physical objects as different compared to privileges that we receive from the state.
This is a failure of logic. Even in the absense of a government, you would own your car--but you would have to personally defend that ownership at all times. The privilege that the state grants is security in your ownership: external protection from uncompensated use or taking. This is how intellectual property rights are analogous to other property rights. The government does not create or own the content; what they grant is protection from uncompensated use or taking of the content.
The problem, which pg explains in the essay that I linked, is that technology has made it no longer practical to treat information (aka a particular stream of bytes) as a piece of private property that you can sell copies of, because copying and distributing it is now almost free. "The record labels and movie studios used to distribute what they made like air shipped through tubes on a moon base. But with the arrival of networks, it's as if we've moved to a planet with a breathable atmosphere. Data moves like smells now."
But in order to protect their profits, "The RIAA and MPAA would make us breathe through tubes if they could." At this point, viewing content through cable is becoming the equivalent of "breathing through tubes." Aereo's workaround is basically a way to say "Look, we are breathing through tubes, the tubes are just invisible!" Very clever.
And what value is the owner of a media copyright actually providing to me anymore? They used to add value by distributing media, but now the media is obsolete because technology has given us faster, cheaper, and easier ways to share digital content.
The other thing these companies do is market the content and talent. But "marketing" is not a product, it has no value to the consumer. Their advertising even has negative value because it wastes my time--viewing it is another price that I pay in order to enjoy the content.
So if the copyright-owning companies don't have a value-add, why should I pay them for anything? Because they asked nicely? No, the only conceivable reason to do so is because the law says I have to. And why does the law say I have to? Because those companies wrote the law.
The law certainly isn't there to protect artists. Artists will always make art, regardless of whether others are able to buy exclusive legal rights to sell their art, or not. And the artists get a pitifully small slice of copy sales anyway.
its not true that they don't value add; its just that their value adding happens once - the cost of production is borne by media companies, and they assume the risk of not making back their investment money. The value they created then is the possibility of a good work being created.
However, asking to be paid continuously for the right to copy the work even after the cost has been repaid to create it is wrong (but this is what copyright law dictates).
Under the old system, artists are commissioned (by the state, or the wealthy) to create a work, which is then freely available to all (granted, a painting can't be so easily copied back then...). I say as technology improves, we need to change to that system again.
When artist(s) want to create a work and want to be sure to be paid accordingly, they first need to solicit the money (including their living/salary/costs) from the general public, and once their costs are met, they produce the artwork. Those who have sponsored would then have full work, but they cannot enforce copyright over any copies made, including copies they themselves distribute. This way, the masses who didn't pay benefit from those who did, and the artists got paid their share (and upfront too). No longer will there exist rent seeking by middlemen for owning the "right to copy".
Investment is not a value-adding activity. When you invest, others' value-adding is what makes your investment grow. The value-adders are the people who take your capital and use it to make something of greater value than the principal amount you invested.
You're onto something when you mention commissioning works of art, though. Currently the motivation for companies to invest in the production of art is the ROI they can get from (exclusively) selling copies of the art, as guaranteed by copyrights. If copyrights are technologically obsolete because copying is now virtually free, then we as a society do need to find a new way to finance the creation of large-scale, expensive works of art--if we still want to enjoy that type of entertainment, that is.
Most art created under the patronage system was not freely available to all--usually the exact opposite, actually.
The only reason you are even aware of art created under the patronage system is because copyright has since made it economically viable to distribute at low cost. You can download a performance of a Mozart composition for a few bucks on iTunes--a tiny percentage of your wealth. Under the patronage system only a few thousand wealthy people would ever hear these pieces of music, because you needed to be physically present at a performance put on by the patron.
Content is not like air, and arguably limiting access to content through "artificial" means harms no one as these methods do not preclude the distribution of other content.
On the other hand, if there is a worry of harm to the public of having an under supply of sufficiently awesome content, property rights are an established method of ensuring this production.
They are totally different, and only cloud the thinking.
If "public performance" should have an effect in distinguishing a distributor from an neutral intermediate could had be an interesting question, but I suspect the answer would be less so. Without a change in the law, "public performance" is either going to be a very dated phrase and thus non-inclusing, or something that means everything that a third-party might see (such as any packet sent over the public network called the Internet).
Since when does fair use require the preservation of ads or any specific portion of the content? Your argument dilutes the meaning and intent of fair use. Even the matter of being free or not has no bearing. The majority wisely avoided this area and fundamentally upheld the fair use rights of the users. The dissenting opinion confuses the issue by discussing licensing agreements, even going so far as to suggest fair use is somehow illegal.
When "the effect of the use upon the potential market for or value of the copyrighted work." became a factor that must be considered in fair use?
While the 4 factors were not meant to be all-inclusive, there's a great law review article that shows that something like 99% of court decisions only ever consider those factors
Wait. Whaaaat??? The content producers are getting their shows time-shifted for free with commercials, so more people will watch the commercials than otherwise would have been able to. Why are they even suing??? They should be sending Aereo flowers!!
(I know, a significant fraction of DVR users skip the commercials. But hasn't the number been shown to be around half, or less? I always skip commercials with the TiVo, but my wife never bothers. I figure that's probably roughly representative of the population.)
Using 22nm MEMs technology I could imagine that I can get 1,000,000 antennas on a die which are clearly articulated when viewed in an electron microscope. Then I can sell these chips for $10,000 each to companies that want to use this "loophole".
If you will: "No offence guys, go right ahead and argue about how many angels can dance on that particular pin-head, I'll be over here watching Game of Thrones on "AllMyVideos.net".
It feels like they're making game out of it instead of rationally addressing the issue.
That's what I mean when I say people will lose respect. If free was free and pay was pay and it was clear what was what, people might get behind it. This nonsense is just going to make people bittorrent and push meaningful solutions that much further down the road.
In this example, in the US, it will be obvious to the IRS that the transaction is not arms-length, and they might levy gift tax on the fair market value of the house. They already thought of this loophole.
There are, in fact, situations where the law is written to look more at intent than technicalities, for example in many areas of US immigration law, or generally in tax law when determining where a person’s residence is. That’s not always a good idea either because it leaves a lot of discretion for government officials and creates uncertainty about what the law is.
An uncynical observer of the political system would say that the legislature has already thought of this: they’ve made the law very technical in areas where they want it to be, and less so in other areas.
Basically,
under the restatement views, nominal consideration = no consideration
under common law views, nominal consideration = consideration.
I'm not sure why you think i'm talking about a non-contract law issue There are many issues with gifts, some in real estate, some in torts, and some in contract law.
Plenty of jurisdictions allow disguised gifts (the classic example being nominal consideration, such as $1 for property) to be looked behind, and because they classify the consideration as a gift rather than anything real, do not form a valid contract. That does not mean it occurs in all cases, or that there aren't jurisdictions where i can have a legally binding agreement to buy a house for a dollar (there are plenty)
However, if you don't believe this is a valid issue in the theory of contract formation, i'm not sure what to tell you.
Maybe this helps?
Restatement (second) of contracts
§71. REQUIREMENT OF EXCHANGE; TYPES OF EXCHANGE
b. "Bargained for." ...
Moreover, a mere pretense of bargain does not suffice, as
where there is a false recital of consideration or where the
purported consideration is merely nominal. In such cases
there is no consideration and the promise is enforced, if at
all, as a promise binding without consideration under §§82-
94
Would it make you feel better if I changed the example to sell ing a car to a relative for $1? Or do you think this is also a legally enforceable contract in all jurisdictions?
(It's not, it would be enforceable in the 'still completely common law' jurisdictions, but not in the 'we take the restatement view' jurisdictions)
I do agree there are separate issues as to whether it is specifically legal to convey real estate in certain situations, but this is completely separate from the general theory of whether you can form a valid contract this way. Even that is different than the question of whether you could get anything, even if the contract was unenforceable (IE some kind of quasi-contract recovery).
However, this is all pretty useless pedantry (though i'm happy to argue about it, since lawyering is fun). I used an example that is legally correct in plenty of jurisdictions to make a point, and the complaint seems to be not about the point I made (that it's not a sham), but about the specific example, and in this case, like everything else, it depends on the jurisdiction.
I could have written a completely legally accurate comment (at least for the US) by adding another few sentences that describe the possible outcomes in all jurisdictions, but it would not be very effective writing :)
As a non-lawyer, my smell test is violated by how needlessly complicated the technical approach is, to produce a fairly simple result. It would be like saying there's an exception to "no trespassing" if you do a very particular, complex dance before entering the property.
[In fact, I wonder if Aereo is patenting their antenna array and general setup. It's clearly a highly complex innovation.]
Actually, there is an exception to tresspassing: the complex dance involves getting certified as a pilot and using an airplane--and staying a certain level above ground. Here's another exception: some jurisdictions allow native populations access to land regardless of private ownership (though ancestry is less generalizable). Medical marijuana might be more similar: it's generally illegal, except for certain illness, so all of a sudden, a lot of people are getting diagnosed (with certain doctors and dispensaries gaining). My point is, all these models of interaction (real property, media copyright, and consumer rights) have loopholes of various degrees, or rather overlaps in what is allowed and what is gained (access vs. property rights, entertainment vs. commercials).
Essentially, the market is still maturing. The model of over-the-air TV with commercials is not the end-all-be-all of consumer entertainment. Other models are being developed at its expense, reshaping the legal and economical landscape as they go, and of course the established players user their clout to hang on as long as possible.
Actually, HBO is evolving. It was already cable-only in response to the shifting of these winds decades ago. Now it is releasing series (Game of Thrones) on its own terms. You see people who say "take my money, just let me download it." But having avoided the gray areas such as over-the-air broadcasting, it is in a position of power. It knows people want the series, that desire creates value, and it is in a position to reap that value. Sure there is torrenting, but from a copyright position, violaters are defintely in the wrong.
As a result, I wonder if this ruling will eventually lead to the end of over-the-air TV transmission. And in the short term, it wouldn't surprise me if Aereo's facility suddenly had very poor reception due to some antenna misalignments at their local transmitter.
A group of other broadcasters, including Fox and PBS,
said they intended to move toward a trial. “Today’s
decision is a loss for the entire creative community,”
the group said in a statement. “The court has ruled that
it is O.K. to steal copyrighted material and retransmit it
without compensation. While we are disappointed with
this decision, we have and are considering our options
to protect our programming.”
Everything about this rubs me the wrong way: from PBS fighting it to there even _being_ a market for Aereo (it shouldn't be necessary, given modern technology).
Sadly, though, there is a _huge_ hole in the market for cheap, easy-to-setup DVR boxes for over-the-air broadcasts. Mythtv is too tedious for the average consumer to bother with, and items like HD Homerun still require some sort of backend server (of sorts) running to schedule record times. Tivo is perhaps the cheapest option, but its monthly service costs are still higher than this option (and still requires separate purchase of a box).
For $8 a month for a 40 hour DVR box, this sounds like a pretty sweet deal to me.
You answered your question right there.
http://arstechnica.com/tech-policy/2011/08/judge-orders-shut...
That is ridiculous. "You are right, it would destroy your business, but it might hurt their bottom line a little bit".
Uhm, in your quote, he clearly says the claim of business destruction is "without any evidence".
I wonder if it makes any difference, the fact that broadcasting is putting out a signal for "free" to everyone in the first place, whereas the DVD's must be purchased in the first place -- so that they never started as anything public, unlike TV.
can you name another instance that this is true?
Otherwise, it's as simple as using hard links to the files.
Once de-duplicating storage is something that is legitimately used by arms-length parties, then you can credibly make the argument that you're using "widely available technologies for data storage minimization" and have a prayer that it would get upheld.
I think it was ruled to be fair to keep it de-duplicated, but I'm not sure.
[http://www.grammy.com/news/artswatch-music-locker-service-wi...] [http://www.wired.com/business/2011/08/cloudmusic-is-not-a-cr...]
I'm curious if they use some sort of filesystem that splits files into chunks, and stores similar chucks once, similar to what Dropbox does. Would this could as storing 1,000 redundant copies if the de-duplication is done at the file system level?
edit: After reading further, it appears that they do store duplicate copies of the file. I am curious how this type of de-duplication would work with the law.
On this day of days, I'm undecided. Otherwise I'd believe it.