Feds now oppose Aereo, rejecting cloud apocalypse argument(betaboston.com)
betaboston.com
Feds now oppose Aereo, rejecting cloud apocalypse argument
http://betaboston.com/news/2014/03/04/aereo-online-tv-streaming-broadcasters-supreme-court-justice-department/
9 comments
Cable companies pay them a lot of money to retransmit network TV. If Aereo is legal, that means that cable companies could use same trick destroying a large portion of their revenue.
So why transmit OTA at all?
Not transmitting OTA leaves little excuse to retain a broadcast license on that spectrum.
So what?
Exactly. They'd prefer not to. But then they can't charge the cable companies as much. A weird circle, huh?
They make more money from cable companies paying redistribution feeds.
You don't understand? Seriously? Can I pass along a life lesson? If you're ever unsure of another's motivations, just assume "money". You'll be right 98% if the time.
Broadcasters, if they could, would never transmit over the air and keep their $1 month/subscriber.
Broadcasters, if they could, would never transmit over the air and keep their $1 month/subscriber.
I think the issue is that because of the DVR capabilities, users can now skip commercials. Also, because people won't be watching as much TV live in the future, the Nielsen data will get wonky. As we move towards an age of streaming, advertisers will pay more or less for placement in shows based on viewership data... but if Aereo controls the stream, then CBS / NBC / ABC would have to pay them to get that data to their advertisers.
It's about control and antiquated business methods. This too shall pass.
It's about control and antiquated business methods. This too shall pass.
There's nothing "antiquated" about the business method here. Spending a lot of money to create content, and then distributing that content to customers is as viable as a business as ever. What broadcasters are objecting to is Aereo's trying to work a loophole in the copyright law with respect to over the air content. Normally, if a company wants to stream NBC's content to its customers, it will have to sign a contract (and pay money to) NBC. This is exactly the same as any other business where a middle man (like Aereo, or Netflix, or Amazon) sits between the customer and the producer. What Aereo is trying to do is distribute NBC's content to customers without paying for it.
This is not an example of "technological innovation" challenging "antiquated business methods." It's a company using a Rube Goldberg contraption to try and exploit a loophole of copyright, to profit from someone else's product without paying for it.
This is not an example of "technological innovation" challenging "antiquated business methods." It's a company using a Rube Goldberg contraption to try and exploit a loophole of copyright, to profit from someone else's product without paying for it.
You are carefully omitting that broadcasters are distributing their content over public airwaves, a right that they have only been granted to first and foremost serve the public interest. Relevant regulations forbid them from, for example, encrypting their content (despite proven commercial solutions; we wouldn't be having this discussion if they could).
So we are in the peculiar situation that broadcasters have to simultaneously restrict access to their content to make money from it, while satisfying FCC regulation that forces them to make it available such as to serve the public interest. That's a Rube Goldberg contraption of a business model if I've ever seen one: it requires the government to continue its practice of giving broadcasters a practically free distribution channel, while relying on lobbyism and legal threats to make the government forget about the public mandate.
So we are in the peculiar situation that broadcasters have to simultaneously restrict access to their content to make money from it, while satisfying FCC regulation that forces them to make it available such as to serve the public interest. That's a Rube Goldberg contraption of a business model if I've ever seen one: it requires the government to continue its practice of giving broadcasters a practically free distribution channel, while relying on lobbyism and legal threats to make the government forget about the public mandate.
There's absolutely nothing Rube Goldbergian about the business model. Broadcasters generally have a right to control the distribution of their content, with the exception that in return for being able to use the airwaves, they must allow people to receive over the air television freely. That's the bargain. It's a clearly defined benefit coupled to a clearly defined obligation. Obviously, the broadcasters have a legitimate interest in not wanting companies like Aereo to game that loophole for their own profit. The public mandate isn't implicated at all. Nobody is talking about cutting off conventional over the air TV. Streaming service like Aereo was never part of that bargain.
This is where we reach the crux of the issue at hand. The question being: what is special about airwaves? As you explain it, broadcasters must allow me to receive their over the air content freely, but when I receive the same content from a 3rd party that took it from the air and made it available to me over cable, internet, smoke signals.. they are illegally rebroadcasting.
So between congress establishing this bargain (where the only obvious medium for broadcasting was over-the-air) and today, where there are many ways to transmit TV, it suddenly became important over which medium I receive their content under the license granted to me by the bargain the broadcasters entered into.
This seems like an odd situation we find ourselves in, because when the FCC started giving out licenses for spectrum nobody gave any thought to other mediums; there simply were no others.
I say we end this charade, broadcasters stop transmitting over the public airwaves, we repurpose their spectrum for something useful and everybody keeps watching their favourite show on cable, as they are already doing.
So between congress establishing this bargain (where the only obvious medium for broadcasting was over-the-air) and today, where there are many ways to transmit TV, it suddenly became important over which medium I receive their content under the license granted to me by the bargain the broadcasters entered into.
This seems like an odd situation we find ourselves in, because when the FCC started giving out licenses for spectrum nobody gave any thought to other mediums; there simply were no others.
I say we end this charade, broadcasters stop transmitting over the public airwaves, we repurpose their spectrum for something useful and everybody keeps watching their favourite show on cable, as they are already doing.
I quite agree that there are better things to do with all that spectrum than broadcast TV. But until we do that, it seems quite obvious to me that when Congress and the broadcasters carved out the special case for over the air TV, what everyone had in mind was being able to receive signals on an antenna attached to your TV. Given that, Aereo's service is just a legal and technical hack to game that special case.
The local broadcasters / network affiliates do need to maintain a viable business model to serve the public interest. Their real value to the public is the local news/weather programming they produce which plays an important role in public safety. It's very arguable that a company like Areo disrupting this model serves the public interest at this point. We need local news/weather, emergency weather alerts, school/road closings, etc way more than we need it to be easier to watch re-runs of Wheel of Fortune via Areo.
How did they make their money before cable existed and we got into this retransmission mess? Nobody was paying them for the content received over-the-air.
(I think the answer is advertisements, but I'm open to other possibilities.)
(I think the answer is advertisements, but I'm open to other possibilities.)
Yep it was mostly local advertising. The biggest problem for local broadcasters is their costs for have gone up dramatically while viewership has declined. Bad mix.
So how many iterations or higher courts or lower courts and judgements and how much time and money is going to be wasted until Aero and Broadcasters are allowed speak in frank terms about who owns the analytics inherent to a broadcast instead all this wrangling over whether Aero as a platform and technology is allowed to exist?
Or is that just "the price of doing innovation" or "market forces" at work?
Or is that just "the price of doing innovation" or "market forces" at work?
I agree with you, but the network over-the-air broadcast method and license for the spectrum in the public interest (which has made them such huge networks) leaves them open to businesses like Aereo picking up their content via antennae.
Once networks ditch the spectrum that is given to them by the government, then they can start complaining about people using antennae to pick up their signals. Until then, I am unsympathetic.
Once networks ditch the spectrum that is given to them by the government, then they can start complaining about people using antennae to pick up their signals. Until then, I am unsympathetic.
What Aereo is trying to do is distribute NBC's content to customers without paying for it.
How far away from my TV am I allowed to place my VCR/DVR?
What should be the distance limit?
Can I stream my in-home DVR to my TV over WiFi or CAT5?
How far away can my DVR be when I stream it?
I'm guessing it's legal for me to have a DVR in my living-room and stream content acquired from over-the-air broadcasts from it to my garage over a network or wireless.
If so, what changes when my DVR is colocated?
This all seems like a "color of bits" issue.
How far away from my TV am I allowed to place my VCR/DVR?
What should be the distance limit?
Can I stream my in-home DVR to my TV over WiFi or CAT5?
How far away can my DVR be when I stream it?
I'm guessing it's legal for me to have a DVR in my living-room and stream content acquired from over-the-air broadcasts from it to my garage over a network or wireless.
If so, what changes when my DVR is colocated?
This all seems like a "color of bits" issue.
The "DVR in the cloud" argument was settled a long time ago with the Cablevision lawsuit. Personal DVRs in the cloud are legal as long as the data is not shared between consumers.
The question here seems to be, how far from the receiving antenna can your TV be?
The question here seems to be, how far from the receiving antenna can your TV be?
Those users can't buy the service they want from the broadcasters. We'd all have much more sympathy for the broadcasters if they were offering a replacement service for Aereo. You might as well argue that a car companies battery technology is being exploited for free by after market sound system companies.
As to the loophole, if your going to argue the spirit of the law was meant to stop companies like aereo existing I'll point out that I doubt the spirit of the law would be to stop me from physically renting an antennae and placing it on a high pole on my neighbors property for compensation and then connecting that to my house in the most efficient way possible. I don't see that in the spirit of the law, so I'd believe if it's a loophole then it's an appropriate one.
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Hmm, good point. I would guess that Aereo, etc. may remove commercials, à la TiVo, during post-processing. Or even more rudimentarily, allow seeking, e.g. fast-forward over commercials.
Aereo doesn't post-process. It just forwards the content of a miniature antenna to your device over IP. There's a one-to-one mapping between viewer and antenna.
Cable companies, by contrast, currently tap the main feeds at one point, rebroadcast the content to their subscribers, and pay retransmission fees to the broadcasters.
(Aereo also operate a DVR service, but the big fight is over the retransmission fees they're not paying)
Cable companies, by contrast, currently tap the main feeds at one point, rebroadcast the content to their subscribers, and pay retransmission fees to the broadcasters.
(Aereo also operate a DVR service, but the big fight is over the retransmission fees they're not paying)
Maybe it ruins their advertising locality or the value of having local network affiliated stations? But both of those seem like pretty lofty arguments.
No, it doesn't. You tell Aereo where you are, and it gives you your local broadcasts only (last time I checked).
They verify your location off the billing zipcode given when you drop a credit card number with them. They also geolocate your inbound IP when watching the service and try to bump you when you're not in the viewing area.
It's been like this since the Beta started but I'm guessing once the court rulings are over they would lift the IP restrictions.
It's been like this since the Beta started but I'm guessing once the court rulings are over they would lift the IP restrictions.
Ah okay, looking into it more and as another commenter has mentioned its probably the DVR aspect, which allows/encourages skipping commercials. They probably fear that the commercials will be stripped out or easily skippable.
TV and film distribution are dying industries grasping at straws.
It's an end cycle game like aggressive stage 4 cancer treatment for the elderly, you blow all your money on a strategy that might buy 5 years of hell.
It's an end cycle game like aggressive stage 4 cancer treatment for the elderly, you blow all your money on a strategy that might buy 5 years of hell.
Fed argument hinges on this "Under the 1976 Copyright Act, a company that retransmits copyrighted broadcast television programs must obtain a license, though qualifying retransmission services may avail themselves of the detailed statutory licensing schemes established by Congress."
All television broadcasts are copyrighted, and local broadcasters, cable providers, and satellite providers all have attained licenses to retransmit those works. Feds are arguing that Aereo is charging customers for public retransmission of copyrighted works without a licence from the copyright holders. Of course current TV providers welcome this stance because they're also trying to sell DVR services.
All television broadcasts are copyrighted, and local broadcasters, cable providers, and satellite providers all have attained licenses to retransmit those works. Feds are arguing that Aereo is charging customers for public retransmission of copyrighted works without a licence from the copyright holders. Of course current TV providers welcome this stance because they're also trying to sell DVR services.
Aereo isn't retransmitting to the public though, it's allowing you the ability to remotely deploy an antenna in a place where reception is good, and forwarding that signal onto you.
It's a stretch to say they're letting me deploy an antenna. It's not like they're just an antenna colocation company where I go install it myself.
Suppose that you were filthy rich, owned property that included a hill, and hired people to put an antenna on your hill and run cable back to your house so you could watch TV.
Now suppose you leased a part of your hill to your neighbour so that they could do the same thing.
What's different about Aereo's model, other than the scale?
Now suppose you leased a part of your hill to your neighbour so that they could do the same thing.
What's different about Aereo's model, other than the scale?
> What's different about Aereo's model, other than the scale?
From a legal perspective the wording of the contract between parties matters an awful lot. A quick look at Areo's site shows they are offering something very different. If your property owner and neighbor entered a similar contract for these services I suspect they would indeed face the same legal risks. Once you become a middle man who is tuning/transcoding/transporting you fit the mold of a cable TV service provider far more than a property owner leasing land.
From a legal perspective the wording of the contract between parties matters an awful lot. A quick look at Areo's site shows they are offering something very different. If your property owner and neighbor entered a similar contract for these services I suspect they would indeed face the same legal risks. Once you become a middle man who is tuning/transcoding/transporting you fit the mold of a cable TV service provider far more than a property owner leasing land.
Are they somehow streaming the ATSC signal over the internet? Or are they changing the signal into some other format, storing and then sending it later?
That's at least a difference.
That's at least a difference.
An Aereo opposer could claim that leasing to your neighbor would itself be a copyright violation.
That's an interesting proposition. If you did have different companies doing the job - say, Aereo would rent you the roof space and provide a dumb Internet pipe, another would sell you the device and yet another would install it for you -, who would be to blame?
If they were, would this change your mind? What if they acted as if they were a subcontractor? At a certain point the line isn't so clear anymore. I don't know the correct answer here, but I'm concerned about the precedent this could set.
The problem with the argument against Aereo is that (regardless of the Justice Department's statement) it unravels rental services. Where is the line drawn? Can I not rent a hotel room and watch television in it? Can I not rent a hotel room, put a networked camera in it, and watch the television in the room while I am not physically in it? Can I not rent a hotel room that already has such a camera in it? Can I not rent a 1x1x1 hotel room with a miniature television and network camera in it? Can the television and camera not be one device? The "room" of Aereo is much smaller, but does size change legality?
Only if you were to redistribute said content.
The argument they're making looks like they're saying that Aereo can't stream copyrighted content over the internet, because the copyright owners (the broadcasters) don't want their content used in the manner. This is weird because broadcasters aren't supposed to have copyrights on material once it's been broadcast. That's been Aereo's edge.
Basically they're trying to close the loophole by saying Aereo isn't consuming the signal, hence they are interfering with the broadcast to the real consumer.
The argument they're making looks like they're saying that Aereo can't stream copyrighted content over the internet, because the copyright owners (the broadcasters) don't want their content used in the manner. This is weird because broadcasters aren't supposed to have copyrights on material once it's been broadcast. That's been Aereo's edge.
Basically they're trying to close the loophole by saying Aereo isn't consuming the signal, hence they are interfering with the broadcast to the real consumer.
Hum, who says the broadcasters aren't supposed to have copyright on the material? That makes no sense, if they didn't everyone could just capture it and rebroadcast to the whole world at will.
I believe Aereo's position is not that the broadcasters don't hold the copyright, it's that they aren't violating it since they just do "location-shifting".
I believe Aereo's position is not that the broadcasters don't hold the copyright, it's that they aren't violating it since they just do "location-shifting".
>The Court of Appeals for the Second Circuit affirmed the lower court ruling on Monday in a 2-to-1 decision, saying that Aereo’s streams of TV shows to individual subscribers did not constitute “public performances,” and thus the broadcasters’ copyright infringement lawsuits against the service “are not likely to prevail on the merits.”
http://www.nytimes.com/2013/04/02/business/media/aereo-wins-...
http://www.nytimes.com/2013/04/02/business/media/aereo-wins-...
That doesn't say they don't hold copyright over the material. In fact, it implies that they do, since otherwise, whether Aereo is doing a public performance or not would be irrelevant.
It only says they only copyright for those who are doing public performances with the broadcast, and that they don't have copyright on the signal itself.
they aren't violating it since they just do "location-shifting"
This is my understanding. For $8/mo, people are renting the physical space that contains an antenna. The crux of the case is whether renting a sensor, or access to a space with a sensor, is illegal.
This is my understanding. For $8/mo, people are renting the physical space that contains an antenna. The crux of the case is whether renting a sensor, or access to a space with a sensor, is illegal.
The antenna by itself is useless until Areo transcodes and transports the content it receives. That is the issue.
Doesn't that just shift the argument to renting computation time?
Edit: Thinking on this I'd assume the whole argument is based on this whole sum of the parts thing. Obviously I wouldn't question if a machine shop is legal or any particular operation in making a gun is legal but I understand regulations on gun production as a reasonable law.
But then it comes to the sum of the parts thing I see Aero enabling a customer to do something legal he in theory could do already in an easier manner rather than broadcasting companies being screwed out of legitimate revenue (mostly because they don't offer equivalent services).
Edit: Thinking on this I'd assume the whole argument is based on this whole sum of the parts thing. Obviously I wouldn't question if a machine shop is legal or any particular operation in making a gun is legal but I understand regulations on gun production as a reasonable law.
But then it comes to the sum of the parts thing I see Aero enabling a customer to do something legal he in theory could do already in an easier manner rather than broadcasting companies being screwed out of legitimate revenue (mostly because they don't offer equivalent services).
Why? If the stream is not HDCP (which currently it cannot be by law), then why does Aereo have a special obligation to treat the content as protected? Congress could end this whole debate by allowing broadcast DTV to require HDCP, which they have so far explicitly denied.
[ https://en.wikipedia.org/wiki/Broadcast_flag ]
[ https://en.wikipedia.org/wiki/Broadcast_flag ]
Anyone have any knowledge of the particulars of the license that the broadcasters bought for the spectrum they use. Are they perpetual or for a limited time?
Just wondering if with the networks claim that most of their viewership comes from cable if their use of the spectrum would no longer be considered the best use for serving the public interest. Taking it further, would that allow the government to re-purpose the spectrum for other use.
Just wondering if with the networks claim that most of their viewership comes from cable if their use of the spectrum would no longer be considered the best use for serving the public interest. Taking it further, would that allow the government to re-purpose the spectrum for other use.
The biggest threat of this lawsuit will be to the meanings of arcane technical terms such as "acquire", "playback" and "her".
The Obama administration supporting broadcasters? What a shock.
This case is going to follow the legal principle of what the government wants the government gets.
For example shopping malls and corporate headquarters are a public use of land, while growing a plant in your closet and consuming it in your home is interstate commerce.
For example shopping malls and corporate headquarters are a public use of land, while growing a plant in your closet and consuming it in your home is interstate commerce.
If it may seem odd to you that the White House would get involved in this issue, this may uncover the mystery - this is what you get when White House hires former MPAA and RIAA executives in the administration:
http://www.techdirt.com/articles/20140303/17554626416/us-sol...
http://www.techdirt.com/articles/20140303/17554626416/us-sol...
If Aereo is distributing the content to more people, aren't they getting more viewers? What is the problem here?