Court: Aereo TV Rebroadcast Is Still Legal

Maximum Prophet writes "While Redigi is illegal, Aereo, the service that allows users to time-shift over-the-air TV programming, isn't. 'We conclude that Aereo's transmissions of unique copies of broadcast television programs created at its users' requests and transmitted while the programs are still airing on broadcast television are not 'public performances' of the plaintiffs' copyrighted works,' said the ruling (PDF). Of course, both decisions are going to be appealed. 'The outcome also answers the question, at least momentarily, of whether online television would be controlled by a stodgy industry that once shunned the VCR, or whether third-party innovators embracing technological advances have a chance to build on the openness of public airwaves. ... Aereo’s technological setup, the court found, basically allows it to do what cable companies could not: retransmit broadcast airwaves without paying licensing fees. In short, the Aereo service is as legal as somebody putting an antenna on top of their house to capture broadcast signals. The court said Aereo “provides the functionality of three devices: a standard TV antenna, a DVR, and a Slingbox” device. “Each of these devices is legal, so it stands to reason that a service that combines them is also legal. Only in the world of copyright maximalists do people need to get special permission to watch over-the-air television with an antenna,” said John Bergmayer, an attorney with the digital-rights group Public Knowledge. “Just because ‘the internet’ is involved doesn’t change this."'"

Comments

Hang on.

[boarder8925]

This isn't a late April Fool's Day joke, is it?

What a hack

[Animats]

Aereo is a legal hack. Each user has their very own UHF antenna. The receiving center has thousands of tiny UHF antennas, one per user, each driving their own private file store. It's a remote DVR.

Re:What a hack

[Kell Bengal]

Each user has their very own UHF antenna. The receiving center has thousands of tiny UHF antennas, one per user

This really does highlight the absurdity of the current legal framework.

Re:What a hack

[sjames]

The absurdity is that the hack is at all necessary. Technically it is 100% equivalent of one good antenna and one encoder multicasting to each subscriber but due to the absurdities of copyright, the separate setup for each subscriber is necessary.

In a sane legal climate, the TV station would be thrilled that Aero wants to help them reach the dead pockets in their area at no cost to them and any suggestion that such helpful people (including the incumbent cable operators) might owe them a fee would be laughed out of court.

Re:What a hack

[khchung]

In a sane legal climate, the TV station would be thrilled that Aero wants to help them reach the dead pockets in their area at no cost to them ...

Playing Devil's Advocate, it would also mean that the existing audiences of a TV station would also be able to view _other_ TV stations, and that means competition.

Before you answer "competition is good", think about how the working people react to the idea that other people outside of their area can now take (what used to be) their jobs. See if those people against the idea would be thrilled if you tell them that, in return, they can also take jobs from other areas.

Yes, both are the result of globalization. But for the TV station's case, it is not a clear cut win for them as you portrayed it to be.

Re:What a hack

[sjames]

Not necessarily. At that point, the re-broadcaster could actually fail the no harm no foul principle that SHOULD be part of our legal system at the fundamental level.

If someone wants to re-broaddcast your signal to people who are definitely in your broadcast area, where is the harm? At WORST, they boost your viewership a bit.

The issue of out of area broadcasts is separate and is not something Aero has ever tried to do.

However, in your scenario the station being re-broadcast out of area would have no cause for complaint since their audience is growing. The competing stations might not be terribly happy, but they don't actually have proprietary rights over the viewers, they are expected to attract them. Their complaint would be the same as McDonald's suing Burger King for offering a better or cheaper burger.

I note that thus far, the courts have not been at all sympathetic to the workers in your analogy. However, if it was found that there was a compelling social interest in maintaining viewership areas, legislation would be drafted to cover it (thus granting the previously missing limited proprietary rights over viewers), not individual court actions.

That would in itself be limited. After all, we do not deem it appropriate to protect an NBC affiliate in an area from a competing CBS affiliate.

Re:What a hack

[hawkinspeter]

If I was them, I'd use a deduping filesystem (e.g. zfs).

A bit of helpful theater

[srussia]

Having all those individual UHF antennas. Lots of apartment buildings have a shared antenna--nothing illegal there.

Re:A bit of helpful theater

[only_human]

I think there is a subtle difference. If you live in an apartment building sharing a common antenna, in some sense, that antenna is a property use paid for by all tenants, similar to a swimming pool.

In the past, putting over-the-air shows on the internet has been stopped. In those cases there was no established obvious user access to the antenna that was used to put the programming on the web. Aereo is trying to merely meet a simpler case of enabling use of equipment to which the user has legal access. It may be that in the future a common use of a single antenna for multiple users may be allowable by extension of the common antenna example that you mentioned. But by breaking out individual antennas for now, it removed the need to establishment of the legality of that at this time.

PBS...

[AlphaWolf_HK]

Undeterred, a group of the plaintiffs, including Fox and PBS, said they intended to move to trial. “Today’s decision is a loss for the entire creative community,” they said in a statement. “The court has ruled that it is O.K. to steal copyrighted material and retransmit it without compensation. While we are disappointed with this decision, we have and are considering our options to protect our programming.”

I recall something in the last election about how PBS should be entitled to government funding for "the greater good", meanwhile their sales of DVDs and other whatnot's (which apparently they are now trying to protect) go directly into the pockets of the executives instead of repaying what the government gave them. Never mind that big bird makes hundreds of millions per year in addition to paying nothing for its main source of distribution.

Why is government subsidized work supposed to be the property of this so called benevolent broadcaster?

And no, I'm neither a Romney supporter nor a Republican. I'm just one of those libertarians who is a nut for thinking that the government handing money to private entities who otherwise have a perfectly sustainable business model (and are in fact very profitable) is ripping off the taxpayers, and I'm annoyed as hell that somebody would be painted as being the bad guy who "hates free education for children" because he wants to take away said funding.

Re:PBS...

[Cajun Hell]

I don't get your point.

Are you saying the court found that you can record Fox but not record PBS? I couldn't find that in TFA.

Or are you suggesting that Fox should move toward qualifying as a "faith-based initiative?" ;-)

Someone doesnt know how big cable works...

[Lumpy]

"Aereo’s technological setup, the court found, basically allows it to do what cable companies could not: retransmit broadcast airwaves without paying licensing fees."

If you think cable companies pay licensing fees to carry local channels then you have no idea how the cable tv business works.

When I worked at Comcast we used to strong arm all the locals by simply not carrying them if they demanded any money. we would just replace their channel with a black screen that says "WZPX is trying to extort money out of you and raise your cable bill. Call them at 888-888-8888 and tell them how you feel"

It was usually about 3 days and the station would call back and say they were ok with us carrying them for free.

Re:Someone doesnt know how big cable works...

[Lumpy]

TV stations that lose "must carry" status can not complain if I insert TV commercials Over theirs effectively taking their advertising revenue. At comcast we did that to the local FOX affiliate that went that way. they whined big time and then negotiated away their fees so that we wold not cover up their commercials with our commercials.

Note: every commercial break the cable and sattelite company can cover up 50% of the TV commercials with their own. Thats how your local car dealer get's his ad's on SyFy and Discovery.

Hmm

[Grizzley9]

Could they not just host overseas and then re"broadcast" back to the US? Any program there are numerous sites transmitting a live feed of from overseas. I always wondered about the legality of that since they are not part of the US copyright system.

Wait a minute.

[spyke252]

“The court said Aereo “provides the functionality of three devices: a standard TV antenna, a DVR, and a Slingbox” device. Each of these devices is legal, so it stands to reason that a service that combines them is also legal." I definitely feel there's a way to abuse this "Combinations of legal devices are legal". I mean, webservers are legal, and CD rippers are legal, so putting ripped CDs on a webserver should be legal too, right?

Re:Wait a minute.

[wierd_w]

If you have copyright granted redistribution rights to the cd image file contents, then yes. Putting ripped CD images on a webserver *IS* perfectly legal.

The scenario you painted is not a good comparison to this judgement.

A dvr allows you to record live a live stream, and then play it back later. It is legal under rulings related to vcr devices. A slingbox does a point to point retransmission from a remote media source to the recipient. It is basically a cleaner version of watching (well trying to anyway...) a movie over RDP.

In both cases, it is presumed that the user has legal rights to the media being recorded, and has limited rights to timeshift and transcode the content into a format suitable for their viewer. Those rights come directly from being within the broadcast area, and being legit customers.

This device requires the user to physically have the reception equipment inside the service area, which then prevents it from running foul of that regional licensing, and the previously held rulings.

eg, to make it fit with your webserver + cd image analogy, we have to do a lot of shoehorning:

1) we have to assume (an absurd ruling exists to permit) that simplying in a certain region immediately grants you access to a specific disk's contents.

2) you place that disk in a drive attached to the webserver, which you operate in a remote location that is within the 'authorized playing area'.

3) only you are then able to access the contents of that disk remotely.

When seen this way, what the TV broadcasters are offering is this:

*a 'disk' that immediately self destructs after being played
*a limited personal use only right to record subsequently re-view the playback of the disk, and a right to view the contents of the played back disk, dependent upon your home address.
*a defacto ability to convert that recording into another format.

What they are objecting to:

*recording the playback, per bulleted item 2, within the authorized viewing area, per bullet 2, of the disk provided per bullet 1, re-coding that recording per bullet 3, and then viewing that re-coded recording outside of the authorized viewing area.

In other words, what they are objecting to is functionally identical to what happens if I physically pack my DVR with me when I leave the authorized viewing area, and view my legal recordings while on vacation. The only difference is the degree of time shifting. (The Aerero timeshifts a few seconds from live broadcast time. Packing one of my DVRs with me on vacation timeshifts several hours to several days from live broadcast time. Otherwise the effect is exactly the same: I am viewing their regional programming "outside the viewing area."

Much like the quip about quibbling over the price of prostitution(1), these companies are quibbling over the amount of time delay between local broadcast, and viewing of a legally made recording.

([1), a wealthy man candidly asks an attractive woman if she will have sex with him for 10 million dollars. She says yes. He offers her 10 dollars. She is insensed, and demands to know what kind of woman he thinks she is. He calmly replies: madame, we have already established that you are a prostitute, we are just haggling over the price.")

The Aereo Decision is Probably Final

[pdabbadabba]

A small point: TFS says that both rulings are likely to be appealed, but the Aereo decision was actually from the 2nd Circuit Court of Appeals. So, unless the Supreme Court takes the case next term (extremely unlikely) that decision is final.

Re:Similar idea

[PRMan]

They already lost. http://www.techdirt.com/articles/20110802/02374615353/court-shuts-down-zediva-apparently-length-cable-determines-if-something-is-infringing.shtml

Re:What about showing NFL games?? they don't have

[frinkster]

What about showing NFL games?? they don't have the rights to show them out of area same thing for FOX MLB games.

Also local games as well WGN can not show all of the bulls games on wgn america and no blackhawks games on wgn america.

These are examples of licensing agreements between content owners/producers and licensed broadcasters. The law has nothing to do with it.

This particular ruling probably ends up being better than Aereo expected. The court said that Aereo does not engage in public performances, therefore it doesn't need a license to do what it is doing. In the eyes of the court, Aereo is an antenna, a DVR, a Slingbox and a really long network cable. It doesn't matter how long the network cable is, and it doesn't matter if you own the equipment or rent it. Since it doesn't matter how long the network cable is, it doesn't matter if it is so long that your antenna is located in a different broadcast area.

Keep in mind that this court ruling is about a preliminary injunction in a lawsuit. Aereo still has the actual trial ahead of it (probably more than a year away). But if Aereo wins, I don't think they will have any geographic limitations applied to their business. You could live in California and rent an antenna in NYC.

Jumping the gun

[the eric conspiracy]

This is just an appeal of an appeal of a denial of a preliminary injunction in the actual suit. As such it's interesting but it really says very little about how this in going to work out in the long run.

One can hope but I wouldn't be investing much money in this company just yet. It's got a long legal path in front of it.

Don't count your chickens - this is a LONG way from being settled.