Supreme court: Aereo is violating copyright law [pdf](supremecourt.gov)
supremecourt.gov
Supreme court: Aereo is violating copyright law [pdf]
http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf
386 comments
The decision is limited to the question of whether Aereo violated the networks' "exclusive right" to "perform" their programs "publicly."
The dissent (Scalia, Alido, and Thomas) believe that Aereo did not "perform" at all. They believe that when an Aereo subscriber logs in and clicks the play button, that the subscriber, not Aereo, is doing that performing.
EDIT: Please note that the dissent would not have necessarily ruled that Aereo's service was legal. The dissent merely believes that Aereo's service complies with this one specific part of the Copyright Act. From the dissent: "[Our] conclusion does not necessarily mean that Aereo's service complies with the Copyright Act. Quite the contrary. The Networks' complaint alleges that Aereo is directly and secondarily liable for infringing their public performance rights and also their reproduction rights."
So this decision is designed to be as tight as possible. The Court is trying to limit the effects of its decision by constraining it to this one claim by the networks. From the language of the dissent, I have a hunch that even if this one aspect of the case had been decided in Aereo's favor, that some other aspect would have resulted in its service being declared illegal.
Scalia: "I share the Court's evident feeling that what Aereo is doing (or enabling to be done) to the Networks' copyrighted programming ought not to be allowed."
The dissent (Scalia, Alido, and Thomas) believe that Aereo did not "perform" at all. They believe that when an Aereo subscriber logs in and clicks the play button, that the subscriber, not Aereo, is doing that performing.
EDIT: Please note that the dissent would not have necessarily ruled that Aereo's service was legal. The dissent merely believes that Aereo's service complies with this one specific part of the Copyright Act. From the dissent: "[Our] conclusion does not necessarily mean that Aereo's service complies with the Copyright Act. Quite the contrary. The Networks' complaint alleges that Aereo is directly and secondarily liable for infringing their public performance rights and also their reproduction rights."
So this decision is designed to be as tight as possible. The Court is trying to limit the effects of its decision by constraining it to this one claim by the networks. From the language of the dissent, I have a hunch that even if this one aspect of the case had been decided in Aereo's favor, that some other aspect would have resulted in its service being declared illegal.
Scalia: "I share the Court's evident feeling that what Aereo is doing (or enabling to be done) to the Networks' copyrighted programming ought not to be allowed."
I imagine this is a minority opinion here, but I don't see a problem with this decision.
Tech people like to treat laws as rigid rules that would be written in a formally specified language if only legislators were capable of such a thing. But they're not, and by design.
It doesn't make sense for a law to be written such that receiving on one antenna and sending the result to your users is illegal, but receiving one an antenna farm all located in the same spot and sending the result to your users is legal.
Do we really want to live in a country where the obvious solution is illegal but an insane workaround is legal? I don't want a precedent set where it becomes standard for laws to be bypassed with expensive and technically pointless workarounds. If we want to allow companies to receive TV broadcasts and stream them over the internet, we should do so. If we don't, we shouldn't. A situation where they're only allowed to do it if they have 10,000 separate and unnecessary antennas is absurd.
Personally, I think it's ridiculous that a TV station can broadcast their signal free of charge to anyone capable of receiving it, but if a company wants to receive it and then pass it along to somebody, they have to pay a fee. But the problem is with the ridiculous law, not with a completely reasonable interpretation of it.
Tech people like to treat laws as rigid rules that would be written in a formally specified language if only legislators were capable of such a thing. But they're not, and by design.
It doesn't make sense for a law to be written such that receiving on one antenna and sending the result to your users is illegal, but receiving one an antenna farm all located in the same spot and sending the result to your users is legal.
Do we really want to live in a country where the obvious solution is illegal but an insane workaround is legal? I don't want a precedent set where it becomes standard for laws to be bypassed with expensive and technically pointless workarounds. If we want to allow companies to receive TV broadcasts and stream them over the internet, we should do so. If we don't, we shouldn't. A situation where they're only allowed to do it if they have 10,000 separate and unnecessary antennas is absurd.
Personally, I think it's ridiculous that a TV station can broadcast their signal free of charge to anyone capable of receiving it, but if a company wants to receive it and then pass it along to somebody, they have to pay a fee. But the problem is with the ridiculous law, not with a completely reasonable interpretation of it.
The really interesting question is the implications for future precedent/innovations. The ruling says "But this difference [Aero's technological setup] means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into “a copy shop that provides its patrons with a library card.”
In other cases involving different kinds of service or technology providers, a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act. But the many similarities between Aereo and cable companies, considered in light of Congress’ basic purposes in amending the Copyright Act, convince us that this difference is not critical here."
What this seems to leave open is the question of whether a company that was e.g. a generic cloud service with various features and functions, among them the ability to rent a mini-antenna and stream recorded data from it to your computer, would still be infringing. It suggests the infringement is largely due to the way Aereo positioned and marketed itself to customers - the common sense reality of the service overrode the technological loophole they attempted to exploit.
What this seems to leave open is the question of whether a company that was e.g. a generic cloud service with various features and functions, among them the ability to rent a mini-antenna and stream recorded data from it to your computer, would still be infringing. It suggests the infringement is largely due to the way Aereo positioned and marketed itself to customers - the common sense reality of the service overrode the technological loophole they attempted to exploit.
I've mentioned this before on HN, I'll say it again: Aereo should now do a pivot, becoming a hardware reseller of TV-signal-receiver/streamer devices like this one: http://www.hauppauge.com/site/products/data_broadway.html - it can stream either over your local Wi-fi, or across the interwebs so you can watch remotely when you're out of the house. Broadband speeds are a bit slow, but they're getting there (slowly) - until then, rely on your friend who has Google fiber or something :). Basically you have Aereo service without the service fees (except the initial hardware cost and internet service cost). I'm especially in favour of this because it's putting back the power in the hands of the end customer -- finally, they own the device, they're not relying on the cloud, they're not facilitating another rentier operation.
The Supreme Court is wrong- the reason cable companies are treated as a 'public' performance of a work is that their distribution medium is shared- any subscriber can tune into that broadcasting of that work over a shared common carrier where one copy of the work is transmitted and many subscribers can view it. Aereo is different in that it only transmits the signal captured to a single subscriber at a time, removing the 'public' nature of the performance and hence invalidating their argument. How absurd.
The majority opinion leaves open the possibility of bandpassing the antenna signal and sending the (already compressed) digital TV signal across the internet to to be decoded at the user's machine. It appears to be the "performance" upon which the majority's opinion hangs; if the "performance" happens in-app on the user's box, it's possible to evade this requirement.
On the one hand, I'd agree with Scalia that the "looks-like-cable-TV" standard is a shaky one, at best. On the other hand, the court is saying "Look, we agreed in the past, but Congress explicitly disagreed with us. Go fix Congress, and we'll agree with you; we're not legislators."
On the one hand, I'd agree with Scalia that the "looks-like-cable-TV" standard is a shaky one, at best. On the other hand, the court is saying "Look, we agreed in the past, but Congress explicitly disagreed with us. Go fix Congress, and we'll agree with you; we're not legislators."
Seems like, because Aereo isn't just a hardware renter but also an integrated SaaS provider, they were treated as such.
The court opinion talks in terms of user interaction with menus on the site to select shows. We're kidding ourselves if this works anything like "hardware rental". If it were, it would feel more like AWS.
The court opinion talks in terms of user interaction with menus on the site to select shows. We're kidding ourselves if this works anything like "hardware rental". If it were, it would feel more like AWS.
Justices Breyer, Roberts, Kennedy, Ginsburg, Sotomayor and Kagan were the majority.
It isn't over since the case now goes back to the lower court, but Aereo can no longer argue they are the same as a person putting an antenna on their roof.
It isn't over since the case now goes back to the lower court, but Aereo can no longer argue they are the same as a person putting an antenna on their roof.
This doesnt make sense. You are paying for renting the antenna. You're not paying for the content.
I never liked the Rube-Goldbergian design of the Aereo system. It was clearly more complex than necessary, for the sole reason to try to find and fit through a loophole in the law.
To support that would set bad precedent, I think--both legally and technologically. Even if you hate copyright, I'd argue that this ruling is probably better in the long run because it clarifies the situation and the fight.
From that perspective I think the decision is essentially correct, although I'm sure it will be unpopular here.
However, I did read the syllabus, and there is some language in there referencing viewer participation in a public performance, that seems worrisome. But I'm not a lawyer, so I will be interested to see informed discussion of whether the specific legislation and precedents were applied correctly, and what implications were created by this decision.
To support that would set bad precedent, I think--both legally and technologically. Even if you hate copyright, I'd argue that this ruling is probably better in the long run because it clarifies the situation and the fight.
From that perspective I think the decision is essentially correct, although I'm sure it will be unpopular here.
However, I did read the syllabus, and there is some language in there referencing viewer participation in a public performance, that seems worrisome. But I'm not a lawyer, so I will be interested to see informed discussion of whether the specific legislation and precedents were applied correctly, and what implications were created by this decision.
Scalia's dissent likens Aereo to a "photocopier or VCR." He says the court's decision "will sow confusion for years to come."
More from Scalia's dissent: "The Court vows that its ruling will not affect cloud-storage providers and cable-television systems, but it cannot deliver on that promise given the imprecision of its result-driven rule."
More from Scalia's dissent: "The Court vows that its ruling will not affect cloud-storage providers and cable-television systems, but it cannot deliver on that promise given the imprecision of its result-driven rule."
Aereo is not violating anything but they should have prepared for something like this. Absurdity is common when you are trying to provide similar service to the consumer in a better way without creating monopoly.
I wonder if Aereo would be legal if they dropped the DVR portion of the service. It seems like that is the issue here.
If it's really just me renting an antenna it seems like that is still legal.
If it's really just me renting an antenna it seems like that is still legal.
This is a disaster for anyone that offers cloud services. It's legal for me to set up an antenna in a data center and stream what I receive to myself. But it's apparently not legal for me to pay someone to do the exact same thing. What's funny is that if the antenna were connected to me via a coaxial cable, it would probably be legal. But since it uses packets and Cat-6 cables and that crazy Intarwebs thing, it's not. I don't get it.
This is annoying because it also obviously affects useful things like WebSDR. Since WebSDR nodes can tune VHF/UHF, they can receive copyrighted TV and music, which means they're now illegal to run under this ruling. (Fortunately, all the good WebSDR nodes are outside the US, so it doesn't matter in practice. But if you were going to set one up in the US, think again.)
This is annoying because it also obviously affects useful things like WebSDR. Since WebSDR nodes can tune VHF/UHF, they can receive copyrighted TV and music, which means they're now illegal to run under this ruling. (Fortunately, all the good WebSDR nodes are outside the US, so it doesn't matter in practice. But if you were going to set one up in the US, think again.)
So in my area, I can't get over-the-air TV. I even put an antenna on my roof, and it doesn't work. What's the governments responsibility for providing public band tv stuff to me? Seems like I'm forced to buy into the cable cabal?
I'm constantly amazed by the way the supreme court carves a razor sharp line through the issues. They always seem to examine these complex issues with the clarity they deserve. That's their job, but these are some fantastic and intelligent individuals, and are the only people in government, especially the justice system, that I have complete confidence in.
I truly wish I could have more confidence in other parts of government, especially lower court judges, and the police.
I truly wish I could have more confidence in other parts of government, especially lower court judges, and the police.
The dissenting opinion is based on a theory that Aero did not make a choice in what they were rebroadcasting. I disagree as they carefully selected the geographic region for their antennas based on their belief in the market demand for (copyrighted) shows in that region. They also carefully adjusted their equipment to be tied to the specific frequencies of broadcasters. They knew and promoted precisely what content viewers would watch.
What bothers me about this is how quickly decisions are made when it comes to content and copyright.
Average Joe doesn't give a flying f* about his privacy, the loss of life in war, the obscene spending on failed military projects, the lack of social programs, the millions stuck with ridiculous student debt...
But hey, touch their right to watch Netflix or some local station from NYC from their house in California and SHIT GETS REAL!
Tsk tsk...
Average Joe doesn't give a flying f* about his privacy, the loss of life in war, the obscene spending on failed military projects, the lack of social programs, the millions stuck with ridiculous student debt...
But hey, touch their right to watch Netflix or some local station from NYC from their house in California and SHIT GETS REAL!
Tsk tsk...
Here's a (naive) question: In the US, is a Supreme Court ruling completely final ? What options, if any, are available to the losing party ? Is change through congress the only way to try to appeal rulings?
If there are no practical ways to repeal Supreme Court rulings, what happens when the Supreme Court makes a mistaken ruling?
If there are no practical ways to repeal Supreme Court rulings, what happens when the Supreme Court makes a mistaken ruling?
I think this is a good read as it relates to the broader implications of this decision;
http://www.vox.com/2014/6/25/5841820/the-supreme-courts-aere...
http://www.vox.com/2014/6/25/5841820/the-supreme-courts-aere...
Not surprised. The service works by rebroadcasting over the air signals and then charging for them, right?
Bit of an "edit war" on their wikipedia page over declaring them defunct already. https://en.wikipedia.org/w/index.php?title=Aereo&action=hist...
Scalia, Thomas, and Alito wrote their dissenting opinion, starting on page 23.
I would love for Aereo to open source the technology, sell me an antenna so that I can run my own Aereo service and stream TV to myself.
Does that mean good bye Aereo? Didn't they say they would shut down their service if they loose?
very sad day for consumers and tech, lots of possible business models broken.
I haven't given Aereo much thought, but it seems like, if I could rent a VPS in Miami, I could watch Miami Dolphins games online for the cost of Aereo plus the VPS. That would be like $30/mo for 5 months. $150 total -- much cheaper than the NFL Sunday Ticket.
That alone is a big loophole!!!
That alone is a big loophole!!!
So how does this ruling not affect the cloud storage providers?
Down. Any mirrors?
Aereo took what were undisputedly public performances of works from broadcasters to the public, intercepted them, and by a feat of what amounted to technological legerdemain turned them into what it argued were no longer public performances but, instead, individualized transmissions from its service to each of its end users as an audience of one.
In this case, the Supreme Court rejected that argument, relying heavily on the idea that it was merely interpreting a statute (the Copyright Act) that had been amended by Congress in 1976 in part to overturn a couple of Supreme Court cases that had interpreted the prior Act to permit cable-TV style transmissions of copyrighted material free of copyright restrictions. The Court held that, in doing so, Congress intended to bring cable-like services such as Aereo into the Act's sweep regardless of the particular technological ways in which it handled the copyrighted material as it re-transmitted it to its users. Treating such technology, in effect, like a black box, the Court emphasized that, regardless of its innards, this service appeared to all concerned - to broadcasters, to viewers, etc. - to be functioning just like a cable service and therefore fell squarely within the Act's coverage as Congress had intended to modify it in making the 1976 amendments.
The most fascinating part of the decision, in my view, was how the Court arrived at this result while simultaneously trying to narrow its impact so that modern technological innovations would not be hit by its shrapnel. The Court not only did so but did so emphatically. Indeed, it devoted an entire section IV (pages 15-17) of its opinion to that issue. "We agree", said the Court, "that Congress, while intending the Transmit Clause to apply broadly to cable companies and their equivalents [i.e., Aereo], did not intend to discourage or control the emergence or use of different kinds of technologies." The Court then goes on to suggest (without deciding) a number of potentially key distinctions by which things such as, e.g., cloud music services might not in any way be infringing, including the prospect of fair use or the fact that the user receiving a transmission from the service may already own the copyrighted works being transmitted. I believe this is a strong signal from the Court that lower courts are not to ham-handedly interpret copyright law to stifle innovation but are to apply it carefully to prevent its abuse.
All in all, this decision represents a guarded upholding of traditional IP protections that prevents the use of technology to enable free-wheeling use of broadcasted materials while at the same time limiting its holding to that narrow sphere. Given the technical wording of the Act, it could just as easily have gone the other way and upheld the Aereo service as nothing more than something that facilitates individual, "private" performances via a streaming technology. But that would certainly have glorified form over substance and, I think, the Court got it right in the end.