As of this week ABC's iOS app no longer allows users to watch over-the-air shows unless they have a cable contract. There's only one reason I can think of for this boneheaded move: ABC wants people to have cable because ABC owns ESPN and ESPN makes more money than any other network.
In the US, they're called the "public airwaves" for a reason: we the public own them and networks just license the use. I frown upon the behavior of the networks and hope Aereo will prevail.
Cable companies also usually pay re-transmission fees to the local affiliates. That's probably the main reason. The affiliates have some power over the networks, so the networks would want to make sure that the locals are still getting something from iOS users.
This is actually the main business model that Aereo threatens... not because Aereo is all that threatening to re-transmission fees, but that if they are successful, then all cable companies could just use multiple antennas to capture the over-the-air signal and avoid paying the (large) retransmission fees.
(Then you get into cable companies owning networks that own broadcasters, and you see that it's all a big mess)
^ Exactly this. It's not Aereo they're worried about, it's the precedent. And if it stands, there will be some major shakeups in the network TV world. I think it's high time for some changes, though.
Aereo basically let's you lease a colocated TV antenna, and streams the content from that antenna to you over the Internet. It's one-to-one, antenna-to-subscriber. This is the core of the business, and the most threatening to broadcasters. But it's also the part where it's really hard for me to imagine how a legal opinion against Aereo could be crafted, without abridging the principles of public access to broadcast TV.
Aereo also leases you DVR services. And I understand that this is where the Cablevision precedent comes into play. But even if that precedent were overturned, it seems to me that it would still be possible for the most disruptive aspects of the service to live on. People would perhaps just be required to host their own DVRs.
(Disclosure: my girlfriend does works for a company that works for Aereo)
But it's also the part where it's really hard for me to imagine how a legal opinion against Aereo could be crafted, without abridging the principles of public access to broadcast TV.
I agree, but it makes me think of when people say, "Well, you can't copyright an integer. And if I convert a DVD to a series of bits, and that series of bits expresses a very large integer, then I'm free to share that uncopyrightable number."
It's clever, and arguably true, but it just doesn't fly in real life. The color of bits bites you in the ass, and I sort of expect that to happen with Aereo as well.
Yeah, each part makes sense, but taken as a whole some judge is likely to think, "If it walks like a duck ..."
What's worse is if a judgement comes down against Aereo that, perhaps inadvertently, opens the door for abuse precisely because it ends up abridging the principles of public access to broadcast TV.
What matters is a certain level of creativity and art. 'as an integer' is no more meaningful than 'as postscript' or 'in times new roman'. It's about the underlying work.
> Exactly this. It's not Aereo they're worried about, it's the precedent.
Definitely. Note though, that this was exactly the concern when cable came out, and got its start by delivering over the air broadcasts from faraway metropolises to subscribers in rural areas or other cities.
For anyone interested in the history of telecommunications, definitely check out Tim Wu's "The Master Switch. There's a section on how new cable companies fought against entrenched broadcasters back when the power dynamic was a little different, really shows how often this same battle repeats itself with different players every time.
Unless the cable companies back in the day used separate antennas for each subscriber, it's not quite the same thing. Aereo actually bothers with this step.
ABC is trying to control what can be done with a video sent over the public airways, so yes, it has everything to do with public airwaves. No one is arguing here about use of stuff sent over non-public-owned cable systems.
The question is, given that it is legal for me to record a show broadcast over the public airwaves, is it also legal for me to pay a company to do that for me.
True! they're called the "public airwaves" for a reason: we the public own them and networks just license the use. I frown upon the behavior of the networks and hope Aereo will prevail.
I think Aereo will prevail because they have explicitly engineered a personal device for personal consumption of a legal public broadcast. Using personal digital equipment in order to personally consume a public broadcast is obviously legal.
The legal theory is that Aereo is essentially an antenna company. If their service is the legal equivalent of an 'antenna', perhaps antennae are now so powerful that the compulsory licensing law needs to be changed somehow in response. In that case, you don't sue the antenna maker, you lobby congress to change the law. It will be entertaining to see this argued and ruled on.
A parallel scenario... Have you seen the telepresence robots (iPad on a stick) that have started to become available? Lets say you're disabled, can't leave your house, but want to "go out for dinner and a movie" with your friends. Your robot rolls into the movie theater, pays for a ticket, and grabs a seat, streaming the video back to you individually. One camera, one stream, one brain on the other end of the wire, and no backing store. Have you violated copyright laws? I think not. I would also love to see the ADA (Americans with Disabilities Act) vs. Anti-Camcording argued in the Supreme Court.
From Wikipedia on ADA -- 'Under Title III, no individual may be discriminated against on the basis of disability with regards to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. "Public accommodations" include most places of lodging (such as inns and hotels), recreation, transportation, education, and dining, along with stores, care providers, and places of public displays, among other things.'
Unfortunately in this scenario, ADA is pretty much gutted.
A movie theater is not required to provide for someone with a disability in any way, shape, or form, if they cannot themselves physically (at least) arrive at the location - and I mean their actual body, not telepresence.
About the most they're required to do is ramps for access into / out of the building, disabled seating and bathroom access.
I do sympathise with both sides, here. Right now, broadcast TV companies are able to charge cable companies "retransmission fees" in order to carry their channels. It's a decent revenue stream. Aereo have side-stepped this for their purposes.
Aereo are entitled to do this. But I don't blame the broadcast companies for freaking out - if Aereo can do this then the cable companies can too - the broadcast networks will lose their retransmission fee revenue (at a time when they're not exactly swimming in cash anyway) and the cable companies get to boost their profits even more. Which they don't deserve.
The only other solution for the broadcast companies will be to switch off their antenna broadcasts, which would also be a big shame.
They don't have a right to a revenue stream just because it is there. It really should have little-to-no bearing on the case other than the networks' eargerness to pursue.
In my opinion it wouldn't be bad if the networks had to pay the cable companies to get carried--after all, they are essentially just improving reception for viewers, letting the networks display more ads than they otherwise could.
The broadcast networks paying the cable networks would all but guarantee they go bankrupt. So the most likely answer here is that NBC, ABC, etc. just shut off their antenna broadcasts. Which would be a real shame.
They don't have a right to a revenue stream just because it is there.
True. But I'd argue that Aereo's $7 a month charge to rebroadcast content they have nothing to do with is a dubious revenue stream, too.
That content is broadcast for $0. It's logically similar to renting an antenna on your roof and a cable connecting that to the TV. Considering that antennas are ugly, and not the cheapest... antenna-invisibility services are a reasonable thing to pay money for.
If I recorded NBC TV shows, burnt them to DVD and sold them on for profit I would be violating the law, despite it also being "logically similar". It isn't as simple as that broadcast being "for $0".
Yes, but then you'd be unfairly duplicating the content without permission.
With Aereo, you are renting the antenna (just far away) and streaming from that. Every customer has an antenna. It is the logical scaling up of a currently allowable business model. It has the same end result as many less savory models, but it is not illegal at all.
Whether it should continue to be legal is up for debate, but right now it's squarely in the right.
Well that's for the Supreme Court to decide now but logically speaking, it's not an unlicensed duplication. It's not duplicated at all. The broadcast is recorded once, played back by the original recorder, and is not distributed as it's not being transferred from one entity to another.
The whole argument obviously relies on the premise that Areo is renting you the antenna, so you're the one doing the recording using rented equipment far away.
Oh sure, I agree. I think that what Aereo is doing is legally correct. As you say, the question of whether it should be at least deserves some discussion.
Whether or not first sale doctrine applies here or not is an interesting question, which I believe is unsettled.
I'm pretty sure it can be argued convincingly either way. I'm sure of that because when I was in law school, it was this very question that my copyright professor asked on the day he picked me to be the Socratic method victim, and they always pick questions that can go either way. :-) I don't remember which way I argued, but I think I argued that first sale applied.
I'm a little unsure what you think copyright law is. It has personal use exemptions that allow you to time-shift content. You are not allowed to sell that content.
Your factory-produced legal copies of what? NBC's content? No you can't. Making DVDs in a factory doesn't magically assign copyright to you. You need NBC's permission.
I don't need their permission to record a broadcast. I only need their permission to make copies beyond that, depending on circumstances that don't matter because I'm not doing that in the hypothetical.
Can you give me references for this? As far as I understand it the broadcaster is doing the first distribution, so the copyright holder cannot restrict my ability to resell the (single) copy they gave me.
They are reboadcasting something that was already broadcast to the public for free, although time shifted and in a different medium. I see it as the same as selling open source software.
They are not rebroadcasting. Only the person renting that particular antenna sees the program recorded from that specific antenna with that specific recording device.
Presumably, the only reason why they have multiple antennas and recording devices is so that the words "copy" and "rebroadcast" do not apply.
By recording from one link layer and transmitting on another they have to be doing at least one operation that can be considered rebroadcasting. Like if I was on two phones relaying messages from one person to another.
They aren't broadcasting, they are transmitting the recording (that you directed them to make) to you. It still should be considered a private performance since the recording was made at your direction and is visible to only you. They aren't taking any control of the equipment, just giving you access to a remote DVR.
If bridging between two wires is rebroadcasting, so too would it be rebroadcasting to place a DVR or VCR on the wire between antenna and television. The SCotUS has already ruled that this is not the case.
When I think broadcast, I envision fanout. There would have to be more than one outgoing wire.
They claim they are not rebroadcasting but words sometimes have legal definitions and sometimes those definitions are weird. Or, if they're not defined there's room for lawyers to argue and judges to decide.
Can cable companies really do this? I don't think they have the bandwidth. Doesn't Aereo give you the data from the antenna you rented? For n people watching the Super Bowl a cable company wanting to take advantage of the "Aereo loophole" would have to actually send n copies down the wire, requiring quite a bit of compression at best.
I don't trust the Supreme Court to produce a proper ruling on this one. I assume Aereo will lose. That said, I don't see how it could be argued that Aereo is breaking any law.
1) Why don't you trust them? I've personally never read a Supreme Court ruling that got the technology angle fundamentally wrong, though I have seen a number where the Supreme Court's principles are at odds with certain values and beliefs often held by technologists.
2) What's so defensible about a business model that is based entirely on taking advantage of someone else's product? Without the content produced by the networks, there would be absolutely no reason for Aereo to exist.
I think Aereo will win, because the precedent is on its side. However, I also think the company is just taking advantage of a loophole and should try actually producing content people want to watch instead of simply taking some other company's content for free.
I have never understood the concept of "taking content for free" and the implied judgment about doing so, with regards to 'retransmission consent'.
If you run an organization that broadcasts content to anybody with an antenna, you should not be shocked, just shocked when somebody picks it up and uses it as they see fit. If you don't want that to happen, don't broadcast your content and don't abuse the public spectrum to try to still exact control over the use of your broadcasted content.
Just because you agree to do N doesn't mean you agree to do N+1 or N+2, etc. The networks do broadcast content, that's very expensive to produce, for free, in return for use of the public spectrum. That's the bargain. But the bargain doesn't mean that they agree to let other people do whatever "they see fit" with the broadcasted content. One part of that bargain, embodied in the copyright rules, is that you can't take the broadcast video and perform it publicly. I.e. I can't tape NBC shows and then open up a movie theater playing them. That's not part of the bundle of rights NBC agreed to give up in the process of broadcasting the show over the air.
All Aereo does is take advantage of a loophole. They couldn't record the shows and stream them, because that would violate the networks' copyright. So they try to shoehorn effectively the same service into the exception for time-shifting.
So a business that would be legal if Aero were leasing the equipment to people in their homes is illegal because it's instead in the Aero office and people connect to it over traditional telecommunications?
If you go to a strip club, and pay the $20 cover, you get to watch the show. Does that mean a company can show up with a camera, broadcast a feed on the internet, and pay $20 for each person who is logged in? It's the same thing right?
> brodcast a feed on the internet ... for each person who is logged in?
The analogous situation would be if they paid $20 per watcher to the strip club, and had one blind dude come in with a whole array of webcams that linked up to people on the internet, with one webcam per person.
To which I'd ask you, why do you think this is a bad thing?
(The difference, of course, being that strip clubs are private whereas the public airwaves are public.)
I am really confused about your analogic intent here.
Who in the real world is being mapped to the strip club which is taking the cover charge money in the analogy? It seems to be that in the analogy's codomain, the strip club might very well love the camera situation as it allows them to make more money per performance. So they can't be standing in for the tv broadcasters. Are they the antenna makers?
The tv broadcasters might more naturally map to the strippers themselves. Except that strippers don't get revenue by something that communicates as easily through the real world video signal like advertisements do. Perhaps if the strippers in the analogy were paid to wear brand logos and messages and such like race car drivers, but they would have to be on the skin, so temporary tattoos then. Or perhaps if the remote viewers in the analogy could hit a button to have the camera toss $X dollar bills onto the stage.
Oh, and the bar... strip clubs also hope to make money on drinks and a cut of the lap dances, is that why you assumed the strip clubs might not like the camera? The cover doesn't actually cover all of the expenses and desired profit. If so, I feel it could have been better spelled out or mentioned at all. But then, maybe the analogy's bar and lap dances are better stand ins for the advertisers in the real world (so we don't have to add in logo tattoos at all).
So, I'm still unsure about this analogy, including about it's value in adding clarity.
The conditions of admission to the show forbid the audience from recording or retransmitting. So you can't do that from inside the theater. But let's just say the stage is set up next to a huge window, and anyone standing on the sidewalk can see the whole thing. The cameraman sets up there, and now he's golden. This is what Aereo is doing. The broadcast station has a huge window on their stage, because they want as many people as possible to watch the show (and accompanying advertisements).
When you broadcast, you are granting implicit license to everyone who can receive to have and keep a copy of that event. Were it otherwise, I could set up an antenna, broadcast a video of me flipping the bird to the camera, and maliciously prosecute everyone receiving on that frequency for copyright violation.
If you want control over who sees your show, you can't really be doing it in front of a huge picture window visible from public property, or by pumping it out over radio signals, which is metaphorically the same thing.
What kind of nonsense analogy is this? Of course it's legal to do that, they can only kick you out if they don't like your camera.
But public broadcasts are.. public. A private issue of patronage has nothing to do with a public issue of legality. You can't make any meaningful connections between the scenarios.
>1) Why don't you trust them?
It may be a selective memory thing, but in my eyes the current court tends to lean towards the interest of big business (Aereo being much smaller than ABC, et al).
> 2) What's so defensible about a business model that is based entirely on taking advantage of someone else's product?
The networks already broadcast the signal for anyone with an antenna to receive. If I own (or rent) a house or apartment where adding an antenna is not feasible (especially as a renter), I don't see why I can pay someone else to setup an antenna and DVR for me.
Does it make a difference that Aereo houses all the antennas in one location? If they were an antenna rental/installation (in your home) company would there be any argument?
> What's so defensible about a business model that is based entirely on taking advantage of someone else's product? Without the content produced by the networks, there would be absolutely no reason for Aereo to exist.
Aereo allows people to do no more than what they can already do if they buy and set up their own antenna and DVR/VCR. Thus they take no more advantage of "someone else's product" than TV antenna manufacturers and DVR companies, whose products also would not exist if not for content produced by the networks.
I don't see Aereo as taking advantage of other company's content for free, anymore than internet providers, TV manufacturers and others are. They're providing a transit service; nothing more.
Your argument about them not existing without the content applies to all sorts of businesses, not just Aereo.
The TV network's arguments are specious at best; if a TV antenna manufacturer had somehow invented sufficiently advanced technology for an antenna that could pickup TV signals from any specific area in the US, they would be just as upset.
I view Aereo as nothing more than providing a special antenna that is leased to a customer.
The reliance of the TV networks on the limitations of technology to ensure the success of their business model is not my problem.
In the end, I don't care anyway, I haven't had an antenna or cable TV in nearly a decade. And I don't consume network TV content on Netflix or the like with any regularity. They could all disappear and it wouldn't matter to me.
This is the heart of the dispute: should we view Aereo as an unlicensed streaming service or an outsourced personal DVR?
Certainly Aereo would not exist without broadcast TV. But the service adds a lot of value compared to, e.g. setting up a DIY streaming PVR with MythTV and an antenna.
Given that that Aereo business model was taken directly from a Supreme Court ruling, I think that they should have a strong argument. With the broadcasters going to different circuit courts with cases, this might be done to deal with having different rulings in lower courts. This should probably seen as a good thing for Aereo that it is their case that is being heard vs another (shakier) business model.
Yep... you're right. I had forgotten that the Supremes had just let the Cablevision Second Circuit case stand and didn't rule on it themselves.
Wasn't their another remote DVR case though that they ruled on that had de-duplicated the data for multiple users? The difference in the Cablevision remote DVR being that they didn't de-duplicate data.
Aereo has done well in court so far, I don't think this will be too much different. They have common sense on their side, no technical knowledge needed (everyone on the court will know about TV antennas).
the broadcasters says "Aereo retransmits". If Aereo were doing retransmission, even using individual antenna per customer, it would still be a public performance (Zediva case comes to mind here), and thus broadcasters would have a case. If Aereo only rents the antenna to customer, it is the customer who is doing broadcast capture and retransmission using the rented equipment - seems to be a well established legal activity (i'm wondering why such an argument didn't work for Zediva, though i don't think they "rented" DVD player to customer, only DVD itself - they were arguing that they can do anything like Netflix or Blockbuster, only by way of online streaming instead of physical transfer of the DVD, so it seems they didn't argue that it is customer who plays and streams rented DVD on rented equipment).
If using one antenna to capture and retransmit a show is not legal, and it isn't (or Aereo would simply do that) I don't see how using more private, leased antennas to retransmit a show is anything but a blatant violation of the spirit of the law.
While I think the law making this distinction is silly, and the law is dumb and needs to be changed, I don't see Aereo's workaround as something that fits within that law.
They are using multiple antenna that because that was how the Supreme's told them how to do it in an earlier case on remote DVRs. Since they aren't "commingling" the signals, using their service can be logically thought of as a "private" performance. If they used one antenna, then all of the signals would be mixed together and could be thought of as "public" (which isn't allowed).
Because each user controls their own equipment, and their data isn't stored with that from other people, then you end up with a lot of duplicated, albeit private, data. And that's the difference.
Using one antenna to capture and retransmit a show to yourself is perfectly legal. That's the whole point behind the Slingbox. With a DVR, you are "time-shifting" your viewing. With a Slingbox, you are "place-shifting" your viewing. Put them together, and you can do both. The only distinction for Aereo is that they are providing place and time-shifting as a service using normal (free) over the air signals. Aereo also doesn't allow you to control an antenna for an area where you don't live, so the customer needs to be in the correct geographic area where they could plausibly receive the over-the-air signals without Aereo.
It's not dumb. It captures the very common sense notion that there is a difference between playing a DVD for some friends at home (private performance), and setting up a movie theater with said DVD (public performance).
Aereo is doing almost exactly what cable television once did, putting a radio receiver on one end of a cable and a bunch of customers on the other. (I assume that cable companies probably have direct physical links to local stations by now, but it's not relevant). The fact that their transmission medium is the web rather than coax seems inconsequential to me.
That seems to fall on the `movie theater' end of the dichotomy, but it's legal.
> Aereo is doing almost exactly what cable television once did, putting a radio receiver on one end of a cable and a bunch of customers on the other.
No, Aereo is putting a radio receiver on one end and one customer on the other. Each customer has their own antenna. It's exactly the same as having an antenna on your home TV, only you're renting the antenna and it comes with a DVR.
And if they used one antenna and hooked it up to multiple DVRs, would it be any different from a technical standpoint? The same signal is transmitted, the same broadcast is collected, and the same set of users get to view the same content in the same way. The intent of the legislation wasn't pushed for by the Antenna Maker Lobby(tm) to maximize the number of antennas in the world. It was to prevent a middleman from doing a mass reselling of over the air content without paying licensing fees.
If one is legal, the other should be as well. And if one is illegal, the other should be as well. Anything else would be insane. IMO, both should be legal.
Yes, and in 1992 the law was changed to require cable companies to get retransmission consent in order to engage in that practice (usually by paying fees).
Putting up an antenna for every individual customer (when one antenna would do for all) to skirt around the law is very much a dumb situation for anyone to be in. But that's what they're doing to remain within the law.
If using one antenna to capture and retransmit a show to a single person is legal, and it is (since households simply do that) I don't see how using more private, leased antennas to retransmit a show is anything but a blatant copy of the legal model.
The problem is that the law is nonsensical in the first place, which is why you can approach it from either side and get almost identical results.
While it's true that the Supreme Court often grants cert to overturn cases, I'm not so sure they'll come down on the wrong side of this. I don't have a lot to base this on, but I would prefer to give them the benefit of the doubt for now.
I can't see why anybody cares about Aereo. Do people think it is unclean to receive DVB? I mean, why spend money on a service so you can spend more money on your metered mobile data plan to pick up a signal that is travelling right by you for free.
I'd certainly pay for the ability to stream TV in distant markets, like IVI.TV did, but it seems like Aereo was created just to have a lawsuit, not satisfy any need.
To pick up my local ATSC-TV lineup would require me to have an 8+ft antenna on my roof. Not really practical seeing as how I live in an apartment.
That's the use case Aereo fills.
Their monthly subscription fee is also lower than the upcharge for buying HDTV from Comcast (who started encrypting their HD local channels because the FCC started letting them).
Really depends upon your local conditions. I live in San Diego where the major tv stations are broadcast inward from various different directions (which makes indoor directional antennas not universally workable unless you're okay with constantly manually rotating it as you go through channels) and here it isn't uncommon for people to live in valleys which make even giant roof-based antennas an iffy proposition.
We don't have Aereo here yet, but when/if they do expand here I'd probably get it.
It's not super bandwidth intensive, and my house is in a spot that gets terrible reception. Aereo is a huge win for us. We don't have to mount a big, ugly roof antenna, and we get every channel instead of just what our antenna can pick up when the stars are aligned just right.
Having Aereo handle this for me is a service. Why should I have to hook up the DDR myself? It's like web hosting: sure I could rent a cabinet and populate it with my own computer, but it sure is more convenient to have someone else do it for me.
I hope they win. It's one of the services that has helped convince my family to ditch cable. I can see them continuing to expand beyond the broadcast market to an internet version of TV. Aereo might not even need the broadcast networks in a few years but they definitely need them now.
Seems like a good opportunity for a Roku-like aereo box. External antenna. 16gb of flash. Couldn't you make a good box with a few antenna options that replicated the exact functionality sold as a consumer product? I can't imagine it would cost much to produce, and a company like roku already has most of the software in place (sans tv schedule and recording facilities) to make this happen.
The thing that always annoyed me about Aereo is how they restrict who can "rent an antenna". If they are to stick to their legal argument that they're just renting an antenna, then why can I not rent an antenna based in New York City, even though I live in Wisconsin?
In the US, they're called the "public airwaves" for a reason: we the public own them and networks just license the use. I frown upon the behavior of the networks and hope Aereo will prevail.