In Aereo, Supreme Court Rightly Skeptical About Becoming Technology Regulators | Hacker News Reader

In Aereo, Supreme Court Rightly Skeptical About Becoming Technology Regulators

eff.org

23 pointsgasull16 comments

I wish this case had been more focused on what Aereo specifically is doing. I found the concerns about cloud computing to be a needless distraction.

IANAL but it looked to me like Aereo made a serious error in not simply arguing that it is an antenna with a (very) long cord. I guess they thought they could scare the court into allowing Aereo in order to avoid some unintended consequence but I just don't see that. Coupling it with the DVR functionality also seemed like a needless mistake.

I'd like to know what the court would think about a service that really is not much more than an antenna with a long cord. But doesn't seem like we will get that here.

I'd like to know what the court would think about a service that really is not much more than an antenna with a long cord. But doesn't seem like we will get that here.

So, an antenna with a long cord. A cable, you might say. We could call it "cable television." And therein lies the rub -- if cable TV providers pay for the right to retransmit local television stations, then the "long antenna" defense might not get them very far.

You might even call it "community antenna television". The difference seems to be that in CATV, the community shares the one antenna.

From what I gathered, that is what they did try to do, only the Supreme Court wasn't buying it at all. Ars gives a few choicer quotes:

http://arstechnica.com/tech-policy/2014/04/at-oral-arguments...

>"What the local antenna person doesn't do but you apparently could do... is with the same kind of device pick up every television signal in the world and send it... into a person's computer," said Justice Stephen Breyer. "And that sounds so much like what a CATV (Community Antenna TV) system does or what a satellite system does that it looks as if somehow you are escaping a constraint that's imposed upon them. That's what disturbs everyone."

>Justice Elena Kagan noted that "from a user's perspective, it's exactly the same as if I'm watching cable."

That quote at the end from Kagan is just utterly damning. It sounds like a magistrate ordering the burning of a witch for the seeming similarity, from an observer's perspective, of a telephone and magic.

That analogy is a poor fit, because it is comparing an outcome (speaking over a great distance) with a mechanism (magic). The witch would be burned for using that mechanism, not for achieving that outcome. (The outcome might be used as evidence for the mechanism if people could conceive of no other mechanism for making a telephone).

Kagan is suggesting that the outcome is what the law was trying to regulate, and so the mechanism used to achieve that outcome is not important.

An analogy that would be more fitting would be to say that it sounds like applying an 1890 law against telephone harassment to an harassment that took place over a cell phone.

I see the Kagan quote as utterly rational. Concentrating on the mechanism rather than the result is like saying it is OK to eat the meat of a deer if you capture it in a trap and then kill it by slitting its throat with a blade that has been blessed by a priest, but it is not OK to eat the meat of a deer if you kill it by an arrow shot.

I see the Kagan quote as utterly rational.

If I attached a digital broadcast antennae to my TV, wouldn't it appear to me just as if I were watching cable? I turn on the TV, I select among channels, I watch stuff. Or I attache the local antennae to a local DVR and use that. Same experience as if I had cable going to my DVR.

Yet despite the same end result I'm not watching cable.

Am I missing something? Is the experience not the same?

When you look at it from that point of view, yes, the outcome is the same, and so from that perspective not only should Aereo be OK, but actual cable companies should not have to pay to take over the air signals and put them on their cables.

For better or worse, though, we've already decided we are going to look at more than just what the outcome is inside the home of the viewer, and consider at least some aspects of how the signal gets there. If you stick up an antenna at your location and receive a broadcast signal for viewing there (possibly delayed by a home recorder), that requires no permission. If you want to take those signals and stick them on a cable to distribute to your customers, or rebroadcast them through a satellite, we've decided that does require permission.

I think when Kagan talks about the same outcome, she means Aereo and a cable company are both third parties that deliver content from the broadcasters to you over a wire for pay.

It always worries me when a case that's even remotely technical makes it to the Supreme Court. Sometimes it feels like trying to teach a dog a card trick.

To be fair, Aereo did try to frame the argument that way. I wish I had a good citation, but when the case arrived at the court, the justices chose to hear the question the broadcasters posed over Aereo's. The former is very much framed as a copyright issue, whereas Aereo's preferred framing was to set themselves up as an equipment rental service. So, unfortunately (from my perspective), the arguments were couched in the broadcasters' semantics from the start.

What's so weird about the case is we're talking about Aereo providing, but not paying for, what's already freely available. That would hardly be controversial if not for the existing compromise with the cable companies. It would seem that they're following the letter of the law, but I didn't get the impression that the justices care about that distinction much.

Perhaps an EFF news release isn't the most unbiased source for a factual claim of the type made in your link headline.

That is the headline used on the EFF original site.

They're suggesting that EFF is biased in this.

Which is silly in a number of ways. The only editorializing is the part saying they're "rightly" skeptical. I don't think anyone is disputing that they asked some skeptical questions and said questions are quoted therein.

That aside, being harshly questioned is not necessarily predictive of which way they will vote. If anything, they're harder on the side they rule against and are using the questioning to find the strongest arguments to put in their rulings.

Is the EFF helping Aereo in this case?

I believe they have been in the recent past: https://www.eff.org/cases/wnet-v-aereo

They also mention an amicus brief in the article, something that isn’t technically a legal defense but generally is the closest thing to it.

From what I gather, EFF reports on cases that they care about, and would provide legal support if needed in addition to coverage.

To answer a question that you haven’t asked: that would tend to support the idea that their coverage is biased. However, their bias is fairly transparent and well-known to HN readers; more importantly, I’m not familiar with a source providing that level of understanding with less bias (since Growker stopped blogging and Jay Zittrain hasn’t commented on this).

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