Aereo loses copyright fight, gets banned in 6 states | Hacker News Reader

Aereo loses copyright fight, gets banned in 6 states

arstechnica.com

112 pointsr0h1n57 comments

Fascinating.

Clearly Aereo could sell antennas that people install. And they could also install those antennas. Presumably they could rent the antenna and the cable to them instead of selling it. So at what point does it cross the line into a service that is illegal? When they use a signal booster? When they convert it to a digital signal? When my neighbor signs up too and they use a common cable along the way?

I suspect the real problem is that the tech has just changed too much; at some point original intent stops making sense when the circumstances change enough. If we had a well-run legislative branch, presumably they would have noticed this problem a few years back and patched it. Or they would have delegated the problem to a regulator whose job it was to keep on top of things. But that's not the world we live in.

Its an interesting theory. And frankly I hope the Supreme Court comes down solidly in Aereo's favor. The theory goes I can put an antenna on my roof and watch TV in the living room, I can put an antenna on top of an apartment building and watch TV down on a lower floor which doesn't have line of sight visibility. If I were rich I could put an antenna on a nearby mountaintop, run a line (with signal boosters and conditioners) all the way to my apartment in the city and watch that. So I should be able to do all of that but using the network cable between me and my antenna as the coax.

And that runs up against some of the fairly ridiculous rules that content providers have been throwing up for years to extract money out of consumers.

So far the courts have been somewhat irrational on the topic but as technical sophistication increases I keep hoping this house of cards will either collappse or be burned to the ground.

My guess is that the Supreme Court will be skeptical, because it looks too much like an attempt to get around streaming rules with a sham antenna that exists solely to get around streaming rules. I'm not that confident in that prediction, but I would be more surprised if they win than the reverse.

Another company that could in theory do something like that is Netflix. Currently they have streaming rights to a certain set of films, but they can rent you physical DVDs of a larger set of films. Could they eliminate that gap by setting up a "remote DVD viewing experience" service for the remainder? For the films where they have the streaming rights, they stream directly. For the films where they don't, they simply robo-insert the DVD into a player, hit play, and stream the output to you... which amounts to streaming video of the film, just with some robotic shuffling of DVDs to give it legal cover. My guess is this wouldn't fly either, but it's hard to say for sure.

There was a company that did remote DVD streaming, exactly in the fashion and with the intent you describe. They lost on court [1] with a $1.8m payout.

[1] http://www.wired.com/threatlevel/2011/10/streaming-movie-ser...

Interesting, I forgot about them. It looks like that case was never really resolved legally, though. They lost one injunction in a District Court, and then shut down, so the underlying issues weren't fully litigated (and not considered by higher courts).

No, they settled out-of-court and shut down after a preliminary injunction by a district court that effectively bankrupted them. There's no precedent there, and no hint of what the result of an appeal would have been.

there was an mp3 company in the 90s that did the same thing, but I doubt the RIAA actually was able to get a precedent.

And that runs up against some of the fairly ridiculous rules that content providers have been throwing up for years to extract money out of consumers.

Broadcast spectrum ain't free. If you're paying hundreds of thousands of dollars in FCC license fees, and millions on mandatory local production (eg news operations) and network content licensing costs, you might look askance at it too. I really think the whole individual aerial thing with Aereo is bullshit.

Of course it isn't free, but that's why there are ads on it.

Right. And the whole point is that the ads are targeted at a local audience.

Ok, and...

Does a viewer suddenly become "not local" if the signal gets to their house through the internet instead of an antenna?

The studios aren't concerned that someone will switch from an antenna to Aeveo, they're worried that someone will switch from cable to Aeveo. Even broadcast channels have been getting into the re-transmission fee game and they don't want to give it up. Frankly, I'm not worried that their business model is being disrupted.

The other issue is that ratings aren't well tracked for streams. This is more a problem that Nielson or someone similar needs to correct but it is a problem. And unless/until Aeveo viewers are counted in the ratings the broadcasters get no benefit from their existence.

The local targeting of ads is actually a minor point. Six minutes per hour of the ads you see are local ads, twelve minutes are national ads sold by the parent network. Also, Aero shows you the local affiliate stream so you're still seeing the local ads. At its core this case is about content rights.

Aereo will only let you sign up for its service if its antennas are located in the same market as your address.

This kind of misses the point that I can get broadcast for free by putting up an antenna at my house right now. I can do that at my neighbor's house or a piece of land down the road or even two states over. So... Again, at what point does this become not OK? This has been a real issue with broadcast spectrum for a while now (it shows up in other areas) and I'm glad Aero is challenging it to get a decision.

Yes, You can do it. But in Aereo's case you didn't, they did. They set up a small forest of individual antennas in a central location, then invited members of the public to lease them. It's top down, whereas what you are describing is bottom up.

If you had negotiated the right to hang a dime-size antenna of the Empire State building, with a home-brewed DVR accessible over the net, and then your friends and acquaintances had done the same thing, and eventually you had clubbed together and hired a janitor to keep an eye on the whole thing, so to speak, then it would have been a community thing that aggregated around a single point (a tall building where I imagine TV reception is good). Aereo is more of an astroturfing operation. It differs from your scenario in the same way that a housing subdivision built out by a developer differs from a village.

Most people pay technicians or contractors to install antennas. Hell, some people pay for remote antennas in the mountains. I fail to see the difference.

Boo hoo. If broadcasters don't like the rules, they should go cable-only and give the public back its spectrum, so that it can be put to a use that best serves the public.

Technical sophistication has nothing to do with this. Aereo's technology isn't complicated, or innovative, in a way courts have trouble understanding. It's a fairly low-tech workaround for rules that draw an otherwise easy to understand line between over the air broadcasts and streaming. The argument Aereo is making isn't a technical one, it's a nitpicky lawyer-ly loophole-y one. It's clearly a streaming service, but because there's a physical antenna involved, it shouldn't be subject to the same rules as other streaming services?

Ray its more sophistication with the meaning of the technology as it applies to the law versus the law itself. The Google v Oracle trial gave us some good examples of what 'understanding' looks like in the judiciary, specifically in understanding that you have to use the same name for a Java method if you want to be "compatible" (widely protected as fair use) even though the words/characters are identical which looks like written text.

By this logic, nobody will be able to make money by licensing the public spectrum and using it to deliver ad-supported content. Anyone with an antenna farm like Aereo will be able to capture, store and redistribute those feeds -- and why not modify them to skip commercials too? Anyone with a device containing 300M antennas can claim to be able to intermediate service for all Americans.

This is not, in and of itself, a reason why Aereo is wrong in this case. Plus, I think it's pretty clear that free OTA's days are numbered anyway. But Aereo would, I think, be attempting here to kill its host.

I'm not following. It seems to me that Aereo increases the reach of broadcasters, so their ability to deliver ad-supported content appears not just unharmed, but improved. Their inclusion of Tivo-ish features is no worse than actual Tivos, which are still legal.

> This is not, in and of itself, a reason why Aereo is wrong in this case. Plus, I think it's pretty clear that free OTA's days are numbered anyway. But Aereo would, I think, be attempting here to kill its host.

I'm not going to cry too hard about that. Ad-supported content can move to IP, and we can stop wasting all that spectrum for broadcast and move it to mobile data services, which are willing to pay much more for that valuable spectrum.

Disclaimer: I (sort of) work in the broadcast industry, but on the Internet/IP side of the house.

I agree with this 100%

I the current age it makes much more sense to do away with broadcast television/radio services and reclaim the spectrum for wireless data services. You can still have 'broadcast' stations over data connections if you like. It's the same logic I would apply to 'channels' on cable and voice traffic on cellular. All of these things can be done more efficiently, data wise, by replacing them with data connections and on-demand usage.

I also find the classification problem fascinating. Of course, the real technicality isn't explicit in the text of the relevant law. The real technicality is that the law is meant to please content creators/distributors. If Aereo does something they don't like, they're going to fight it, even if we spectators think that Aereo is technically following the text of the law.

In the second legal battle that Aereo won back in 2012, the lone dissenting judge in the US Court of Appeals in NY had a scathing critique of Aereo's scheme. I'm generally pro-Aereo, but I think HN readers might find this portion of Judge Denny Chin's dissent interesting:

"Aereo’s “technology platform” is, however, a sham. The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law. After capturing the broadcast signal, Aereo makes a copy of the selected program for each viewer, whether the user chooses to “Watch” now or “Record” for later. Under Aereo’s theory, by using these individual antennas and copies, it may retransmit, for example, the Super Bowl “live” to 50,000 subscribers and yet, because each subscriber has an individual antenna and a “unique recorded copy” of the broadcast, these are “private” performances. Of course, the argument makes no sense. These are very much public performances." [1]

[1] http://www.ca2.uscourts.gov/decisions/isysquery/620ea2ad-c6c...

So then what are the rules they are to play by? "We'll make them up whenever we feel like it!" Certainly, this is a legal problem, but that to me indicates that it is their problem to fix, not Aereo's. If their judgements rest so heavily on the minutea of the tech backing this up, perhaps it is time to rethink these laws on more principled grounds than they have sofar been imagined....

You certainly make a good point, but I disagree with your conclusion.

Ideally, a law is drafted as narrowly as possible. Otherwise, it is open to extremely broad interpretation and eventually becomes far removed from its original purpose ( the Computer Fraud and Abuse Act and RICO are examples of laws where this principle has not been followed). If a more "principled law" were to replace the current OTA rules, it would certainly be far more expansive to include all immediately foreseeable edge cases (Congress tends not to get excessively involved in the finer points of modern tech, partially due to awareness that incorrect jargon could result in a law becoming obsolete in a few years).

The cited opinion does not rely on the minutea of the tech at all, the judge is using the technical description to illustrate how a complex technical scheme can be used to circumvent the intent of a law. And generally, judges do not look favorably on what they percieve to be "legal tricks", in this case, applying the unarguably legal example of private OTA viewing to a far more expansive scheme to act as a secondary provider of OTA streams without properly licensing them for redistribution.

I'm sure that the law could be rewritten in a more "principled" way, but there's a very good chance we could end up with something like the CFAA, which would be far worse than relatively narrow judicial interpretations of the current law.

The laws effectively codify commercial agreements between the public (who gets very little representation, IMHO) and various moneyed interests. As they had the better bargaining spot, I'm not really inclined to give them anything we did not specifically agree to.

It's sad that their response to imaginative new technology is "we didn't think to outlaw that, so we're changing the rules." Might as well be a "right to profit" in my view.

So, I don't have the right to contract to a company to do at their location what I would contract them to do at my house?

Or is it just illegal when my neighbor makes the same contract?

For example, no one is arguing that a webservices company wouldn't have the ability to create multiple VM instances, each of which stored copies of my digital media and streamed a single copy of them back to me upon request. (Assuming I had obtained the copyrights to use these products myself.) Nor that it would be illegal of the company to do this multiple times, for multiple clients, even if the VMs were hosted on the same physical machine. It's clearly that any of the copyright violations involved in this scheme would be the result of the end-user, and not of the hosting provider.

I think the judge is simply wrong here - and that there is a meaningful distinction in the technology used to implement it, precisely because it's a per-customer service, rather than a bulk aggregation and redistribution.

Aereo uses many antennas because the CableVision DVR precedent (or a different DVR precedent) said that deduplication was illegal in a remote DVR service, but one copy to one subscriber was fine.

They may have even started with one antenna generating many copies (one per viewer), and designed the multi-antenna hardware because of a different court's decision, but I cannot recall, and searching is difficult from a phone.

I'm not American and I heard of this company for the first time, but it's obvious for me that 'over the air' is the progress, and 'over the physical cable' is not, and it seems to me that physical cable owners want to block progress, and an unreasonable toll solely for owning the cable, because they know they will never own the air.

Same thing with Tesla and car dealerships. Why would I need a dealership, if I can order a car to my door online straight from the manufacturer these days?

It is more economically efficient for the manufacturer to deliver ~300 cars to one location every couple of months and have the 300 customers drive the "last mile" to their homes when they want to buy a car.

The alternative is to have the manufacturer drive all the way to each customer's house at a time the customer chooses individually.

The current system of car delivery is a better use of energy/people's time than autos on demand.

Cars on demand don't prevent the manufacturer from having local warehouses to where they deliver ~300 cars every couple of months, so the energy expended doesn't really change, only who does the last-mile driving (new owner versus some employee). If anything, a warehouse will waste much less than a dealership holding the same number of cars.

As for it being a better use of people's time, if people are choosing the buy from the websites vis-a-vis going to dealerships, I'd say they have shown otherwise.

If you're suggesting that removing the sales staff, mechanic shop, and loud promotions from car dealerships would cut costs, I agree.

Perhaps we agree on all counts. I do not understand how a dealership and a local warehouse differ in a conversation about how to distribute auto inventory for sale.

Well, I guess the issue is that I didn't think that was the conversation we were having. cinskiy asked why would one need a dealership, when one can order directly from the manufacturer - this doesn't imply anything about the distribution of inventory, just how the sales process works.

The parent may have been referring to states with laws prohibiting Tesla from opening its own dealerships or selling directly to customers in those states.

I'm not sure why you are talking about cable owners here. The plaintiffs in this case are broadcast stations and networks, not cable companies.

I must've misunderstood the article then.

This has nothing to do with the cable companies. It's the broadcast networks, who actually make the content that people want to watch. Internet-types like Aereo and Youtube have been trying to free-ride on their efforts for a decade now, getting viewers by distributing content they didn't create. And when the content creators legitimately complain about it, the internet-types paint them as "holding back progress."

By owning and using broadcast spectrum, these content providers are in a unique position in the market. By broadcasting for free over the air, they have the privilege of reaching huge audiences easily. The fact that nowadays most people don't use an antenna isn't particularly relevant, because the content providers grew and achieved dominance due to the ease with which their viewers could tune in. Their entire business model is based on being able to charge outrageous prices for advertisements because they reach a /large audience/.

Now, they're trying to have it both ways. The intent of public broadcast is to operate for the 'public interest, convenience and necessity.' The entire purpose of broadcast television is that it's broadcast freely and accessibly. If they don't like that model, and think they can be more successful through a closed system, they of course have every right to give up their broadcast spectrum and sell their content elsewhere, rather than offering for free. What they can't do is pretend that their content deserves to be available for free OTA but somehow comes at a premium if delivered through any other means. If they make that argument they are dragging their feet and refusing to meet the intent and spirit of broadcast television.

The content companies would put Aereo out of business real quick by offering a free, constant, live stream on their websites with local ads and programming based on the location of the viewer.

Owning OTA spectrum comes with a responsibility to provide the signal to the public for free. It was an absurd idea to begin with for content providers to charge cable companies to distribute something which has the sole purpose of being distributed and is broadcast for free to everyone with an antenna.

This is actually bigger news than most people realize. The powers that be are trying to establish a precedent to preemptively control content transmission by still-to-come technologies in the future.

Aside from that, I love it when a simple, old-school hack (TV antenna) is used to solve a big problem and provide better service than the big corporations.

I think Techdirt nailed it 6 years ago: "Felony interference of a business model"

http://www.techdirt.com/articles/20071004/163314.shtml

I think it just requires one country to have favorable laws for it to be big punch hole in the cable televisions monopoly.

The first company to figure out Internet HD TV streaming both live and Netflix style browsing per tv program shows 100-400 TV channels

Selling this around $10 per month will win a lot of subscribers.

Examples of companies that have Internet TV streaming solutions Aereo Zattoo Magine

Internet bandwith are dropping for every year that goes by as routers gets more powerful, we only need around 10 megabit to stream HD tv, someone will figure it out.

This judge is old and out of touch http://en.wikipedia.org/wiki/Dale_A._Kimball

I use Aereo everyday and the game needs to change even for the better of copyright. They just don't see it yet, as they didn't see the win that befell them when they lost the war against the VCR.

Is he out of touch because he is improperly interpreting the law, or because he reached a conclusion you don't like?

Indeed do you like and enjoy dealing with your cable company? Do you like paying for tons of channels that hold no value to you? Do you not want to see awesome and innovative content services created? Do you know the history of copyright and how they always fight technology, but it in the end it works out for the better of them?

This has absolutely nothing to do with whether or not a judge has properly applied law and legal precedent in a ruling. Calling the judge old and out of touch due to his ruling suggests you don't actually understand what judges do in their jobs.

I don't know about that. This same judge was a big part of SCO v Novell http://en.wikipedia.org/wiki/SCO_v._Novell

He seemed pretty reasonable there, IIRC.

That's really unfair. I mean Donald Knuth is old too and so are some fairly important figures.

It's unreasonable to dismiss someone's argument based on his age (along with looks, race, etc.). Did you read his arguments? Do they make sense?

Aereo's argument that these are private performances has a counter argument, which Kimball cited. His example was pay-per-view shows in hotels, which are private viewing but definitely public performances.

Even in the NY case when Aereo won there was a dissenting judge who made a reasonable argument as well.

I took a quick look over that Wikipedia article, but I'm not sure which part you're pointing to as evidence that he is "out of touch."

Same technical measure was used by an online PVR company in Australia four years ago. Alas I can't remember the name. It didn't work out well for them.

ArsTechnica is lame to act like this is a Utah-specific thing. This is a federal case brought in a federal court that happens to be based in Utah.

If you'd read the article, you'd know that a federal case brought in a federal court in New York came out the other way, so the impact of this decision is geographically-limited until the Supreme Court weighs in (oral arguments coming in April).

I did read the article and I understand that the decision affects all of the 10th circuit and that other courts ruled differently. It still has nothing to do with Utah specifically. It's a federal district court that is operates within Utah, but is otherwise wholly separate from Utah's interests or government. The articles says things like "Utah is hoping to slow their progess". This is blatantly misleading.

Do the lawyers here feel like Aereo's losing is reasonable?

depends on which side they are being paid by.

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