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Comment by kevincennis | Hacker News Reader

DISCLAIMER: Former Aereo employee. Views do not reflect those of my former employer. Blah blah blah.

This all goes back to the core of the argument though: Is Aereo a content provider or an equipment company?

Obviously SCOTUS disagreed with several lower courts and determined that we were infringing. But to paint it as a black and white issue strikes me as a gross oversimplification.

Just out of curiosity (I'm legitimately not trying to start an argument), do you think Cablevision* should have been overturned? If not, how do you reconcile the fact that their RS-DVR doesn't publicly perform, but Aereo did?

*I seem to recall seeing you comment on Aereo stuff a bunch in the past and knowing a fair bit about the case, so I assume you're familiar with the Cablevision decision. Apologies if I misremembered or assumed incorrectly.

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I'm having trouble understanding the ruling, so maybe those here with more knowledge can help.

As a thought experiment, assume I live in a building that gets spotty OTA reception on my antenna. However, there is an apartment for rent on the top floor, and I decide to rent it for the sole purpose for storing property. If I set up an antenna in that apartment, but do not live in the space, and run a long cable from the top floor to my apartment, am I in violation of the law? I do not own the apartment that the antenna resides in, and I do not physically live there.

If this is not illegal, does it become illegal when I cut the cord between the apartments and instead encode the signal and stream it to my laptop?

So, said a different way, does the legality depend on whether I live in the same physical space as the antenna, or the fact that I have digitized the content between my two rented spaces?

It would seem that the courts view a company such as SlingMedia as a hardware provider and Aereo like the landlord of my second rented apartment. However, I can't resolve at what point what I do with my rented space and equipment becomes illegal.

Can anyone explain?

Where you would probably cross the line is you sold this as a service. Doing this for personal use is one thing, selling your apartment's antenna connection over the internet to a single other person is another.

In both examples I am renting space in which to place my antenna. In the first example, I own a single antenna and pay fees to my landlord. In the second example, I own a single antenna and pay fees to Aereo. I would argue that the only difference is marketing.

SCOTUS never really addressed this. The majority opinion was basically just a bunch of vague hand-waving that amounted to "if it looks like a duck...".

That was one of the most frustrating things for me when the decision came out. Obviously we all understood that we might lose, but to have a decision handed down that was so completely devoid of any sort of definitive logic or reasoning was really, really demoralizing.

They effectively just said "You look like a cable company, and even though we accept that legally you are most certainly not a cable company, we still find that you publicly perform... because cable companies publicly perform".

Aereo argued that what they were actually doing in their datacenter mattered.

American Broadcasting Companies argued that the equipment you were running was irrelevant and what mattered was the service you were selling (streaming unlicensed TV over the internet).

I don't think the latter point is unreasonable. And I don't think your company thought it was unreasonable either (except when trying to win court cases). When trying to market your product to customers this is what your website said(1):

"Watch Real, Live TV on the Internet. Finally. With Aereo you can now watch live broadcast television online. No cable required."

The customer doesn't care about what's going on in your datacenter. Why should SCOTUS?

1. http://web.archive.org/web/20130302160437/https://aereo.com/

I think the latter point absolutely is unreasonable.

That marketing tagline you pulled could just as easily have come from Sling (i.e. "Put an antenna in your house and hook it up to a Slingbox"). But nobody seems to think that would be a public performance.

By your logic, Aereo should have been legal if the website said "User-controlled, individually assigned remote antennas and DVRs in the cloud".

The way you market yourself has nothing to do with copyright law. You need to look at what's actually happening under the hood – not just base your decision on whatever the "user perception" is of the service.

You missed my point.

I didn't say that Aereo was legal or not based on its marketing, I said that there was a common cause to both Aereo's lack of legality and the marketing the company chose to sell the product.

All that effort to litigate Aereo out of existance, and technology marches on.

https://www.tivo.com/discover/antenna

Cable companies acquire a license to rebroadcast. That is how they operate.

Aereo didn't have that.

I think that is more than enough to distinguish Aereo from the cablevision law. But the Supreme Court doesn't haven't to follow Cablevision. That wasn't a SCOTUS case. And other circuits had conflicting rulings.

Cable companies have a license to retransmit live programming. That's a completely separate issue from time-shifted transmissions.

Cablevision didn't have a license that allowed consumers to remotely record and play back shows. But the courts decided that the company didn't need a license, because it was the users rather than Cablevision who were performing in that instance, and thus it was considered a private performance.

But yeah, I'm fully aware that SCOTUS wasn't bound by the Second Circuit decision in Cablevision. I only brought it up as a thought experiment because I was interested in hearing rayiner's opinion on that.

The Scotus opinion didn't really differentiate between live and time-shifted transmission. It found that Aereo didn't even have the right to transmit at all. The issue of time-shifting then became unimportant.

I'm not sure how SCOTUS would come out if it had seen Cablevision, but I think there is clear room for differentiation.

I think you can say that time-shifting is not rebroadcast without allowing Aereo. Aereo went a step further and said well we'll rent you an antenna. That's really the part that didn't fly with SCOTUS.

At least that is how I'd argue it.

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