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Broadcasters Petition US Supreme Court In Fight Against Aereo
First time accepted submitter wasteoid writes "Aereo provides live-streaming and cloud-based DVR capability for Over-The-Air (OTA) broadcasts to their paying customers. Broadcasters object to this functionality, with Fox claiming about Aereo, 'Make no mistake, Aereo is stealing our broadcast signal.' The focus appears to be the ability of Aereo to provide streaming and DVR capabilities that traditional broadcasters have not delivered. The litigious broadcasters are fighting against "Aereo's illegal disruption of their business model.""
Living in Japan once in a while someone from NTT knocks on my door asking that i give them money for receiving the signal they broadcast.
my teachers told me about this scam however i tell them two true things
1. i dont have a TV. so im not paying for something i'm not receiving
2. if you don't want me to get the signal then don't broadcast it to me.
same should apply here. the TV stations broadcasted their signal in "cleartext"
So we have no rights to the content beamed into our homes, but they have the Right to Profit, even with a bad business model.
Learn to love Alaska
This is exactly WHY this should be allowed. If it is cheaper to setup your own antennas than pay someone else to do it then consumers are being overcharged for the service. Competition should be protected, not the opposite of it.
--- Mercutio was right.
The real reason the broadcasters are doing this is because right now if you dont have an antenna (and many people dont, people in apartments and other shared dwellings, people with no light of sign to the transmission tower etc) the only way to get the OTA channels is to buy pay TV. And the pay TV operators pay a fair chunk of money to the OTA networks for rebroadcast rights.
So what Aereo is doing is allowing a lot more people to get the OTA channels without going through the cable companies (which means the cable companies wont be willing to pay as much for the rebroadcast rights to the OTA networks)
... then why don't the big broadcaster get together and buy Aereo before it can - supposedly! - "do more damage". --- This whole thing reeks of the stink TPTB raised each time an Internet file-sharing tech came along. Instead of investing/going along with the "new wave in media consumption", TPTB always demonize whatever the latest content-delivery mechanism does. ---- So My Dear Big-Broadcasters: Put your money where your mouth is, and buy Aereo "for the good of the industry". --- I sometimes wish that the Big Media PTB would hire a CEO/CTO who is in his 20s - 30s only. I bet that CEO/CTO would go along with new trends in media distribution and consumption, instead of trying to shut them/shoot them down before they even get a chance to mature. My 2 Cents... As always, feel free to disagree. =)
Why did the chicken cross the road? Because Elon Musk put an AI chip in its head.
...than a case of how far away from your TV your DVR is allowed to be located.
Which is to say the broadcasters are trying to use smoke and mirrors to cover up rent seeking.
I see even classic Slashdot is now pretty much unusable on dial up anymore.
I remember before there was FOX network.
When they came along the big 3 had such a hissyfit at them for daring to do something different.
And now here we are.. Fox is having the fit for someone else daring to do something different.
Didn't take very long at all. 27 years to turn you into a stick up the ass 'we demand profits forever for doing the same thing' greedmonster.
because this is the typical knee-jerk response from any company whose income supply is threatened by another.
If you gave me a choice between a printer and a giraffe with explosive diarrhoea, i'll get my ladder and my raincoat
... then why don't the big broadcaster get together and buy Aereo before it can - supposedly! - "do more damage". --- This whole thing reeks of the stink TPTB raised each time an Internet file-sharing tech came along. Instead of investing/going along with the "new wave in media consumption", TPTB always demonize whatever the latest content-delivery mechanism does.
Great question, and great advice for the industry.
In another industry, the big publishers own and operate magazines.com ... they could have been idiots and tried to stamp out internet subscription agents, but instead they became the biggest one. Duh.
with Fox claiming about Aereo, 'Make no mistake, Aereo is stealing our broadcast signal.'
It's clearly not theft. Why is it not illegal for Fox to make this fraudulent claim in a public forum?
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Since the Americans hold their Constitution so dear, almost to the level of Scripture itself, maybe a proper way to deal with corporate parasitism, is to make it unconstitutional to make any law which props up a failing business model or restricts competition in a free market.
Maybe this is just a case of Not Invented Here, and the broadcasters are wishing that they had thought of, and implemented, first the idea of streaming live on the internet and having a PVR like service. The BBC has had this for some time allowied you to stream the currently broadcast programmes and more recently allowed you to pause and resume, as you can on a PVR. Other UK broadcasters have similar internet offerings, some even allowing you to watch certain programmes before they are broadcast on-air.
If you weren't suing them, I may not have heard of their service. Now that I'm aware of it, I will most likely sign up once they are in my area.
I'm fairly certain that it's actually the taxpayer that licenses the right to use these frequencies to the broadcaster in the first place. Shouldn't the taxpayer have some say in how they are subsequently used?
My ism, it's full of beliefs.
.. then why don't the big broadcaster get together and buy Aereo before it can - supposedly! - "do more damage"
Three reasons:
1) If you win in court, it prevents other people from trying to pull the same stunt
2) It may well be cheaper to pay lawyers to litigate against Aereo instead of attempting to buy it.
3) It just might not be for sale.
Faster! Faster! Faster would be better!
I wonder if this isn't a big deal because Aereo isn't rebroadcasting. Broadcasting is transmitting to a wider audience. Aereo has a single antenna distributing to a single person. Obviously this is what Aereo thinks is the case, the stream from my DVR to my TV is not a "rebroadcast." Contrast this with the cable TV operators, who receive the signal once, often through specialized equipment, and send it to all of their local subscribers.
That's the essence of Aereo's legal position(founded on the 'Cablevision Case', where CableVision's 'cloud DVR product, with a similar 'one tuner and storage allocation per user, controlled by the user' was upheld as licit).
Team Broadcast is apparently shitting themselves for some combination of (A) reactionary stupidity and (B) fear that cable companies that currently pay absurd fees to retransmit OTA programming will find it cheaper to set up these goofy antenna-array things than to pay off the broadcasters(which is a pretty good sign that the broadcasters are currently overpaid, if such a silly mechanism actually saves money; but they obviously like being overpaid...)
You didn't read the article, which I suppose is par for the course on slashdot. They don't care less about Aereo. They care about the precedent that anyone can take their programming free and resell it if you set up enough antennas. If Aereo can do it, anyone can.
FCC requires cable operators to rebroadcast local OTA stations, but they have to pay for that. The broadcasters can essentially charge whatever they want since cable operators are legally required to buy their product. Those operators are pooping themselves because if they stop OTA broadcasts then cable operators no longer have to buy their product, and if they continue then antenna arrays can get them around these fees, so the big cash cows that are cable operators will dry up overnight once this decision is upheld. Over time cable operators will be able to lower prices, or increase profits substantially!
Oh, that's a cute little subsidy. I'm sure I'd throw up in my mouth if I heard the 'justification' for why a cable provider should be required to carry OTA signals and pay more or less whatever is demanded, because they are required.
Is that just a pure handout to the broadcast guys, or is there anything even slightly redeeming about it?
If he takes your lemonade without compensating you, then sells it for his own profit.. What would you do then?
If the courts decide Aereo doesn't have to pay the broadcasters, then Big Cable won't have to either. The networks will have to go back to 100% advertising revenue. I promise that will not be good for the consumers.
Are you seriously suggesting that there is anything on OTA that is even worth the RF space is chews up? The broadcasters would be doing us all a favor by shrivelling up, dying, and leaving the field open for people who give a damn to pay for service, and people who don't not to have to deal with the ripple effects of the subsidies that keep them creaking along.
So you want the broadcasters to shrivel up & die.. That would leave Aereo with nothing to retransmit. Who wins then? Certainly not the consumer!
So you want the broadcasters to shrivel up & die.. That would leave Aereo with nothing to retransmit. Who wins then? Certainly not the consumer!
If a service that snags OTA transmissions out of the air (using a Rube Goldberg device, for legal reasons) and then shoves them over the internet is commercially viable, I have a sneaky plan: shut down the 'OTA transmission' and 'ridiculous antenna farm' parts of the process and just sell streaming video over the internet. Win-win. The OTA guys don't need depend on shaking down the cable companies and ad-spamming their customers for money; because they can just have subscribers, and the goofy unnecessary infrastructure intricacies can be removed, saving money and spectrum for everyone.
Alternative business idea: take OTA FM radio broadcasts and stream that to subscribers ... oh, that's illegal too.
Wait, most radio stations already do that, and for free. It's the RIAA and their demands for royalties at a much higher rates that keeps the others off the internet. Aereo radio wouldn't be a viable business.
Come to think about it, why shouldn't the TV stations compete against Aereo by offering streaming as well? Offer it for a cheaper price or free, yet protect ad revenues by limiting ad skipping.
If a service that snags OTA transmissions out of the air (using a Rube Goldberg device, for legal reasons) and then shoves them over the internet is commercially viable, I have a sneaky plan: shut down the 'OTA transmission' and 'ridiculous antenna farm' parts of the process and just sell streaming video over the internet. Win-win. The OTA guys don't need depend on shaking down the cable companies and ad-spamming their customers for money; because they can just have subscribers, and the goofy unnecessary infrastructure intricacies can be removed, saving money and spectrum for everyone.
Because it's probably only commercially viable if you don't actually have to pay to produce the the content you're shoving over the internet.
It's more like you were giving out lemonade for free and I charged money for me to go to your stand, get the lemonade, and deliver it to people. You'd just be pissed because you're already getting money from the laws that force local restaurants to have to buy your lemonade at whatever price you want. If they can set up an operation like mine, you lose money you shouldn't be getting in the first place.
...
I'd raise my price to what he re-sells the lemonade for. But we're not discussing lemonade. We're discussing copyright.
If you've ever had your provider get in to a deadlock contract with an OTA station; you'll realize retransmission fees are a scam.
According to the law; a TV station has two options; they can negotiate a retransmission fee for a cable system; or invoke "must-carry", in which the cable provider is *required* to carry them. The station does not have to pay for a "must-carry" station; they are however required by law to carry them. That's bad for the cable company because they have to dedicate QAM space to a channel they may not want. However, if a cable provider negotiates a retransmission fee; they are allowed at that point to insert "local" ads over OTA stations.
In reality; the stations are only screaming about *potential* loss of profits here. The real losers are the local advertisers; who are paying the bills to keep the station's OTA signal running. Thier ads will only get seen by people with OTA; and those times when a local company isn't inserting ads over airtime.
This is why it's common in some areas for a cable/satellite provider to lose the right to carry a local channel. The station wants more money to reach it's demographic; and when a deal cannot be struck, the channel becomes unavailable. If it's a network affiliate; you lose that network entirely. FCC laws prohibit an "outside" station to be piped in to another market. Ironically; this law was made to protect local advertisers, ensuring they had a better chance to be seen in a market where their ads are already possibly being covered over with whatever promotion your provider is running this month.
The ruling that Aereo is legal was upheld by an appellate court already. They found the place-shifting technology (which is what this is); did not constitute public performance. Likewise; since there was an individual receiver and antenna for each user; there was no breaking of any law.
A2B TV does a similar thing; only with satellite TV. And they've even changed since I first found them. Used to be they'd get you set up with a cable TV account at whatever provider was local to the datacenter, along with a slingbox and "hosting space"; thier new model seems to use satellite TV and you have to send them a receiver. I own a Slingbox (two of them actually); and it's perfectly legal to have them hooked up to my TV's; of course I do pay for a TV service. But what about the Slingbox I sent to my friend in Texas with an OTA receiver so I could watch my favorite football team? Legally, it's my receiver and my hardware; so it *still* falls under placeshifting; and it's still not public retransmission.
Networks are going to complain and bitch because they're "getting thier business model stolen"; they seem to forget thier original business model was providing a service for free that was funded by advertisers; that's shifted in to a service that's still provided free, but paid for by cable and satellite companies. I can't blame advertisers for wanting to pay next to nothing; would *you* want to pay top-dollar for advertising knowing the majority of your demographic on cable or satellite might not see it? Of course not.
Again, it's just the networks sitting there looking at the potential profits they're losing because a lousy business model they created failed; one that was doomed for failure in the first place. What were they doing all those years when analog C-Band was still dominate; and they did not scramble the network fee? All those people were watching network TV without local inserted ads. What were they doing before the 1992 act and cable providers could literally pipe in any OTA channel their antenna farm could pick up; you know, back when the FCC mandated providers had to carry locals. Complicate the matter by the fact the FCC has allowed cable broadcasters to begin encrypting OTA feeds; which were once required to be left unencrypted.
The real issue is if they get this declared illicit; what's to stop them going further? They could begin saying multi-room DVR is illegal; worse yet, they coul
They are leasing you an antenna ... and connecting you to YOUR antenna for free.
now we need to go OSS in diesel cars
... shut down OTA TV, then I'd be happy.
now we need to go OSS in diesel cars
The business model is leasing an antenna to a consumer, and providing the connection. They don't like the fact that this is legal.
I'd like to have this kind of service, but not for TV.
now we need to go OSS in diesel cars
The problem here isn't that aero is using their signal for free, it's that the broadcast channels think they're entitled to money for retransmitting their signal over another medium. The FCC should make it illegal for broadcast companies to charge cable companies to carry their signal.
I'm quite pissed that when their deal with my local cable company expires the fucking broadcasters have the gall to run ads asking me to demand my cable company caves to their extortion so that I can have the privilige of a higher bill.
if Aereo is rebroadcasting the signal, the fact that it's OTA doesn't change anything... it's copyright infringement, plain and simple
How then, do you explain three separate federal courts finding that Aereo is likely not infringing? If it was plain and simple, it seems unlikely that they'd miss it.
Take a look at the opinion from the Second Circuit that came out in the spring.You'll see that what it hinges on is not whether there was a transmission, but to whom Aereo's transmission was aimed.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
FCC requires cable operators to rebroadcast local OTA stations, but they have to pay for that.
As I understand it, they're not required to carry them and pay. The broadcaster has a choice between required carriage for free, or optional carriage for pay. But non-local channels cannot be substituted for local ones; thus if a cable company won't pay a local broadcaster which is a network affiliate, and which demands to be paid, that network drops off of cable. We saw this earlier in the year with Time Warner Cable and CBS (and its affiliates).
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I don't look forward to the day that I have to pay a monthly fee to watch local news, or watch a Pay-Per-View Superbowl. That is essentially what you are suggesting
I am intrigued by your idea of being paid to watch the Superbowl, and would like to learn more.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
It could be problematic if the supreme court agrees.... as a precedent, it could effectively spell the end of open source works that are still protected by copyright law... the argument being that if something is being made freely available and in the clear, anyone who can legally receive it is free to do whatever they want with it, including things that would otherwise be copyright infringement.
File under 'M' for 'Manic ranting'
It could be problematic if the supreme court agrees.... as a precedent, it could effectively spell the end of open source works that are still protected by copyright law... the argument being that if something is being made freely available and in the clear, anyone who can legally receive it is free to do whatever they want with it, including things that would otherwise be copyright infringement.
That's not the argument.
The argument is that in the US, copyright only prohibits certain things (most of which, you can find at 17 USC 106). The one which is relevant for Aereo is that public performances are protected by copyright, but private performances are not. By breaking apart their infrastructure as they have, Aereo claims that it is engaged in the business of private performances (because each user has their own private antenna, their own private copies of shows, all sent to them alone, not shared with anyone by Aereo).
This really has no effect on the GPL one way or another, as there are separate exclusive rights under section 106 for making and distributing copies, and making derivatives. Those are the things that tend to matter for GPL purposes.
Go read the previously linked-to opinion, please. Your misconceptions are not helping at all.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
When you are doing "private performances" for anyone among the general public who is interested in seeing them, the argument that the performance is still "private" becomes pretty tenuous. This is an absurd abuse of a technicality in how the law happens to be worded, and completely defies the intent behind it. I sincerely hope the supreme court slaps this one down.
File under 'M' for 'Manic ranting'
If it were plain and simple this probably wouldn't be at the stage it's at now. What I think we can note is that Aereo's service is not rebroadcasting in a vein similar to me setting up an antenna in New York and streaming it to all and sundry on the web. The broadcasts are one to one (a single antenna per user), and are reliant upon the subscriber providing a credit card billing address in the area of the signals they wish to receive. With these restrictions in mind, I don't see Aereo being substantially different from running a Slingbox or rebroadcasting a signal throughout my own house - with the understanding it is secure and not a public re-broadcast.
I use a remote backup service, to which I'm the only one having access to my data. I back-up some GNU licenced software (minus the source), which I can then download again later. Technically the backup host is now "broadcasting" GNU licenced software, and has made no provision for providing the source. I am the only one accessing this software - it's not free and open public file-hosting service.
Is the backup host committing copyright infringement? If not, then why is Aereo. Also, why have the lower courts already ruled the other way? I think you could, at a stretch, make some kind of moral argument, but I just don't see how this is copyright infringement unless we apply this to a broad range of other already commonly used applications. Congratulations, you have practically outlawed cloud computing, network routers, home-based services that allow users to redirect a TV signal to other TVs in the same household, and VNC.
-- Using the preview button since 2005
I'd suggest that the backup host isn't committing copyright infringement because they originally received the data that they are backing up for you *FROM* you.... while Aereo is receiving their data directly from the broadcaster. By supplying it directly to you, they are engaging in a rebroadcast practice that clearly defies the intent of copyright law, even if they might be arguing that the technicality of how it may be worded seems to permit this sort of activity.
File under 'M' for 'Manic ranting'
When you are doing "private performances" for anyone among the general public who is interested in seeing them, the argument that the performance is still "private" becomes pretty tenuous. This is an absurd abuse of a technicality in how the law happens to be worded
How the law is worded is crucially important. Otherwise, why bother?
The wording at issue is:
To perform ... a work âoepubliclyâ meansâ" ... it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or ... of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance ... receive it in the same place or in separate places and at the same time or at different times.
(1) to perform
(2) to transmit or otherwise communicate a performance
Aereo isn't performing at a place at all, so part one is out. This is aimed more at, for example, a bar that has a TV set, or a movie theater.
For part 2, their transmission isn't to the public, because they don't make one master transmission. Instead they make individualized transmissions to each customer, each a separate performance, from each customer's separate antenna or each customer's separate DVR'ed copy made from that separate antenna. The nature of the transmission recipient is important, because to ignore it would be to ignore the plain language of the statute that says "to transmit ... to the public." The nature of the transmission is important, because to ignore that would be to ignore the plain language of the statute that says "a performance ... of the work," which isn't the same thing as agglutinating all performances.
completely defies the intent behind it
Congress is of course free to change the law, if the courts have gotten it wrong. But the letter of the law controls, with intent only being instructive in the case of the letter being unclear. It's not particularly unclear here, it's just something that people hadn't really thought of before.
I sincerely hope the supreme court slaps this one down.
I sincerely hope the Supreme Court does a good job of interpreting the law. I don't want a particular side to win or lose, I want the law to be upheld, whatever it is. It's not for the Court to decide this as a matter of policy. Your comment betrays your partisanship, but you really ought to take that to Congress instead.
And now your disinterest in reading the opinion becomes clear; you've made up your mind and don't care about honestly looking at counter arguments and possibly revising your opinion.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
What about file locker services that conserve space by matching identical files? Although the two of us uploaded identical copies of a file, it's only one actual copy held on their end? Using your argument, that is copyright infringement, as the file I download isn't necessarily the one I uploaded.
I get your point, but I think it's the target of the re-broadcasting that's key here. They are not allowing people access to services they would not already be able to receive if they were to stick an aerial out the window. From what I see of their terms, I wouldn't even be able to watch my home TV channels if I'm out of state or abroad. If this is an illegal rebroadcasting then why would those things I mentioned not be copyright infringement?
-- Using the preview button since 2005
What I care about is the potential ramifications I can imagine as a consequence, if this is upheld. I can easily see it resulting in the complete dissolution of copyrightable open source, simply by labeling each individual transmission of the work a so-called "private production" or whatever is necessary to somehow make it inapplicable to being an infringement.
File under 'M' for 'Manic ranting'
The file that they have is an exact copy of the one that you uploaded... but that would be true even if you were the only uploader... since uploading does not send the receiver any physical media upon which the original copyrighted content might reside.
File under 'M' for 'Manic ranting'
rebroadcast. You keep using that word. I do not think it means what you think it means.
But it's not the same file. We can probably agree that it's impractical for me to push this distinction. If you can understand why this distinction is pointless, you can maybe see why I don't understand why you're focussed on considering Aereo to be re-broadcasting. Sure, technically they are, but it's demonstrably not the same as if they were to be either sending the signals outside of the area intended by the broadcaster or sending the signal to anyone who could not otherwise get the same broadcasting if they could have an aerial. If Aereo would alter the content before re-broadcasting, then I would object. By alter, I mean actually changing what content - not just transcoding or similar. For example, if Aereo were to remove adverts before re-broadcasting to the user. There's certainly a relatively arbitrary line to draw here, and from what I see we're doing this but drawing the line in different places. i.e. for the file locker thing you consider the user simply retrieving a file they themselves originally uploaded (or a file identical to the one they uploaded) to be fine because the user provided it, which for some reason gives the host freedom to re-broadcast it - despite the user having no authorisation to grant such a right. This is why I say it's arbitrary - not necessarily wrong, but not black and white.
Would your objections be primarily moral or would they be legalistic in nature?
-- Using the preview button since 2005
My objection is moral, because I perceive the respecting of copyright as the moral thing to do. I perceive it as such because the protections of copyright gives creators legal authority over copies of works that they would not otherwise have if they distributed their work at all. and this legal authority is what gives many of them incentive to publish in the first place, instead of censoring themselves, or limiting their audience to a select few.
File under 'M' for 'Manic ranting'
4) That would run afoul of anti-trust laws.
I am becoming gerund, destroyer of verbs.
Oddly, I can find anything I want on line...and often the regular TV shows are streamed BY THE NETWORK, not any "arr" type websites. You can don eye-patch and watch anything you want, though. I don't care about sports, which is what this is probably really about.
Not really.
Suppose Patrick Stewart was a bit hard up for money, and offered a service to the general public where he'd come to anyone's home to read Harry Potter to the family living there for a fee. That's private performances to anyone among the general public who is interested in seeing them, and 100% legal whether J.K. Rowling likes it or not.
Now suppose Brent Spiner wants to get in on the action, and rents an auditorium in which he will read Harry Potter to anyone who pays an admission fee -- that's a public performance, and he'd need to clear it with Rowling.
That Aereo is jumping through hoops to make multiple private performances rather than one public one is undeniable. But they're entitled to jump through hoops to follow the law, even if it is rather silly.
I can easily see it resulting in the complete dissolution of copyrightable open source, simply by labeling each individual transmission of the work a so-called "private production" or whatever is necessary to somehow make it inapplicable to being an infringement.
Performing a work privately isn't infringing, because the exclusive right of performance under section 106 only applies to public performances. However, unlike the GPL, this does not 'infect' the work or any instance of the work. Copyright applies to the work as much as it ever did. Therefore, if you privately perform a work, by, for example, watching it on TV, you cannot make a copy of it, distribute copies of it, or make derivative works based upon it. There might be a fair use exception to certain acts depending on the circumstances (e.g. copying a work by recording it on a DVR, whether this is done at home or remotely over a network), but fair use can apply to any kind of use to any kind of work, so long as the use is fair. There's nothing special that a holding against Aereo would do vis a vis fair use and its applicability to open source software.
You're worried about things that have no chance of happening, possibly due to ignorance of US copyright law. It's not just making a mountain out of a molehill. You're making a mountain out of sheer imagination; there's no molehill or any other thing to enlarge in the first place.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
This works in complete harmony with copyright law since you need permission from the copyright holder in order to copy a copyrighted work for purposes that do not fall within the boundaries of fair use. The GPL, in a nutshell, is just simply the copyright holder granting that permission. The GPL may require that derivative works be covered under the GPL, but in reality, that's just part of the terms that a person is supposed to agree to in order to have permission to copy in the first place.
If a person does not abide by the terms of the GPL, however, then the permission that the GPL grants does not apply to that person, and so could be found guilty of copyright infringement when making copies of the work that do not fall within the boundaries of fair use.
as to your other point, I don't know how unlikely what I fear if this is upheld might actually happen is, to be honest... but it's the first thing that *I* thought of, and I can't help but express my concern for it.
File under 'M' for 'Manic ranting'
If a person does not abide by the terms of the GPL, however, then the permission that the GPL grants does not apply to that person, and so could be found guilty of copyright infringement when making copies of the work that do not fall within the boundaries of fair use.
Copyright is about more than just fair use, you know.
It may help to think of copyright by means of a Venn diagram. It's like a subset that is, itself, full of sub-subsets that compromise holes in what the subset contains.
The largest set is the public domain. Anything in the public domain can be used freely, in any way, so far as copyright is concerned. (Because we're talking about copyright, and not, say, personal property, note that a copy of a work can still be owned and off-limits even though the creative work embodied in that copy is not protected. For example, the Mona Lisa is in the public domain, but the actual wooden painting made by Da Vinci is heavily guarded. Copyright might not give anyone the right to stop you from making a copy of the Mona Lisa, but the Louvre doesn't have to let you take a photograph of it.)
Works that are copyrighted fall partially into the subset of copyright. Partially, not wholly, because copyright only applies to certain types of action with regard to a work. For example, making a new copy of a work by reproducing it is one of the exclusive rights of copyright. But using a book (which is a copy of a work) to prop up an uneven bedframe is not an infringement of copyright, because the law does not grant copyright holders an exclusive right of 'propping-up.' Likewise, some kinds of works are not copyrightable. In the US, from 1790 on, only books and maps could be copyrighted. Only when the law was amended in 1802 were some engravings copyrightable. In 1831, all engravings, and also musical compositions; 1856, dramatic works; 1865, photographs; 1870, paintings, sculptures, drawings, and models and designs of works of fine art; 1912, motion pictures qua motion pictures (previously they were claimed as collections of photographs); 1971, sound recordings; 1976, pantomime and choreography as themselves, as opposed to being dramatic works; 1990, architecture. Anything not on the list of protected types of works is in the public domain. (Software, in case you're wondering, is treated as a literary work, like a book, but doesn't yet have its own category) There are a few other limits on what is copyrightable, but they're not terribly important for our purposes.
Of the list of enumerated rights which compromise copyright, and which is short in comparison to the list of all rights concerning those works and their copies, as applied to those works which are eligible for copyright, which is less than the totality of all works, there are still some subsets which further limit copyright protection.
Fair use is one of them -- any otherwise infringing use, which is fair, is not infringing. That's a fairly good-sized hole in the already swiss-cheesed set of copyright. First sale is another big one -- the right of the copyright holder to control the distribution of copies is almost entirely obliterated once the copyright holder has sold the copies in question. There are some exceptions to that exception, and some exceptions to those exceptions to the exception, but it's still shrinking copyright. Another one you might enjoy for software is that if a person owns a copy of a program, he can copy it and modify it in order to make it work, without needing permission. Likewise, he can make backups without permission. So really, so far as copyright goes, people in the US only need to agree to the GPL to copy a work if they're going beyond the statutory exception that keeps copyright from stopping them making certain copies.
There are exceptions like this throughout the Copyright Act. They can be broad, they can be narrow, they can be subject to various conditions and exceptions themselves. But the point remains that copyright is an all-encompassing, all-covering blanket. I
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
That is, more or less, what I said.... or at least what I was trying to say. If I didn't convey that, I'm sorry for the confusion.
But when you allow the public to see your "private performances", it's not really private anymore is it? If I had a TV, I could invite friends over to watch a sporting event with me on my television. I could not, however, advertise that my house will be open to whomever wants to come over and watch sports with me, since that would constitute public viewing, even though it is in the privacy of my home. It's my understanding that there is even legal precedent for this exact situation, and why the argument that these are allegedly "private performances" is just a crock. What they are is less about what Aereo claims they are and much more a reflection of what is actually going on - a rebroadcast that even though it may be to specific individuals, should no more count as a private performance than personally giving a copy of another copyrighted work without authorization to somebody else in particular can actually constitute private use, and by virtue of not being private, should be considered an infringement of copyright law. If we allow the former, then why should the latter still not longer be allowed?
I maintain the position that this looks and smells exactly like copyright infringement to me... and Aereo seems to be getting away with what I sincerely fear, if this is upheld by the supreme court, could go so far as to compromise the integrity of copyright as a whole when people in the future try to argue that the distribution of copies of copyrighted works without authorization to other individuals should reasonably be considered "private copies".
If it happens, I can only hope I'm wrong about my assumption, but that doesn't mean I actually believe that there's any significant chance I might be.
File under 'M' for 'Manic ranting'
Ah, but they do not broadcast. They have been asked to mount an antenna within the free broadcast field of the station. That signal is then received by the client, AND NO ONE ELSE.
But when you allow the public to see your "private performances", it's not really private anymore is it?
Aereo doesn't. It's separate performances per user, which maintains their private nature. Public performances would require that multiple users experienced the same performance, or at least shared the same copies which were being used to make the performance. That's what distinguishes it from a regular broadcaster (which uses a master performance) or a Redd Horne style video on demand service. (which re-used copies and was found liable for public performance)
The argument against it basically hinges on ignoring the fact that copyright only protects public performances, and expanding the right to all performances, because private persons viewed in aggregate, even though otherwise not connected to each other, comprise the public. And also, by ignoring the individualized nature of the copies, and instead viewing it as sharing copies because they all stem from a master source.
If I had a TV, I could invite friends over to watch a sporting event with me on my television. I could not, however, advertise that my house will be open to whomever wants to come over and watch sports with me, since that would constitute public viewing, even though it is in the privacy of my home.
OTOH, if you had 100 TVs, and 100 TV antennas, you could rent those TVs and antennas to private persons to set up and use in their own homes for the duration of the rental agreement. This is actually a longstanding practice. In fact, my paternal grandparents didn't own a TV for a long time, but did rent one in 1969 in order to watch the moon landing. The parallels to Aereo's service are pretty strong: users get exclusive access to an antenna, a video file, and a sufficient portion of computing and telecommunications resources in order to get the video stream.
personally giving a copy of another copyrighted work without authorization to somebody else in particular can actually constitute private use
Distributing a copy of a work is protected by copyright. However, there is a big exception in first sale; if the copy was lawfully made, and has been conveyed by the copyright holder or an authorized person, the copyright holder cannot control future distribution of the work by means of his copyright (subject to a few exceptions not relevant here).
So if you give me a copy of a book you bought from the bookstore, that's ok. You don't need authorization. You can even do it if you're specifically ordered not to by the copyright holder; he is impotent in the matter.
And there's no such thing as private use, really. Copyright doesn't prohibit public use, or private use, or any sort of use-use, really. Reproduction, distribution, making derivatives, public performance, public display are basically all that's prohibited. So long as your use doesn't involve any of those, the copyright is inapplicable. And if it does, there may yet be an applicable exception.
It's my understanding that there is even legal precedent for this exact situation
Super, let's have it. Of course, you might still want to look at the previously linked-to Second Circuit opinion, in case the court already looked at that precedent.
distribution of copies of copyrighted works without authorization to other individuals should reasonably be considered "private copies".
The public performance right only covers public performances. The distribution right, like the honey badger, don't care: it applies to both public and private distribution. First sale and fair use, likewise, are unaffected.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
My point is that they are calling their distribution a "private performance", on the grounds that it is being presented to specific individuals who have requested the service. What is to stop something similar from happening with other copyrighted works?
Because you see, am really suggesting that their alleged notion that what they are doing somehow qualifies as a "private performance' is very obviously just a bunch of hooey.... not that private performances should not be exempt from copyright infringement. They are doing these so-called "private performances" for anyone who wants to use their service among the general public, and that's very obviously not what private performance is supposed to mean. I am nothing less than shocked and very concerned that it has even made it this far.
File under 'M' for 'Manic ranting'
My point is that they are calling their distribution a "private performance", on the grounds that it is being presented to specific individuals who have requested the service. What is to stop something similar from happening with other copyrighted works?
First, the public performance / private performance dichotomy only matters for certain types of works: literary, musical, dramatic, choreographic, pantomime, motion picture and other audiovisual works, and in the case of digital audio transmissions only, sound recordings. (That's why analog radio stations don't have to pay royalties to recording artists to play records: no performance right. There is a right for the underlying song, though, so they do pay songwriters)
Second, expense and impracticality. If Aereo wanted to branch out into something like Netflix, where it rented videos on demand, it would have to contend with Redd Horne. The Redd Horne case involved a video rental store that not only rented videotapes without authorization (which is not infringing if the copies are eligible for First Sale), but also provided in-store viewing areas, and TV sets, for people to watch the movies with. Patrons using the viewing areas didn't handle the tape themselves; the store clerk had control of the tape and the VCR. Essentially, they were operating a small, on-demand movie theater, and this was found to be infringing because they re-used the same copy of the tape and the tape was never even under the dominion of the patron, but at all times under the dominion of the store.
More recently, this cropped up with a company called Zediva, which offered to rent a DVD, and a player to a customer, and to stream the video over the Internet. Based on Redd Horne, they got shut down, because again, they reused the same copies that they showed people, and they retained control over the copies.
For Aereo to avoid these precedents, they'd need to have one lawfully made copy of each video per customer, and never share them between customers. Dealing with all the discs would require more physical space, more equipment, more staff, and would still be risky due to the discs remaining on Aereo's premises. They can't copy the discs. And it would not be particularly inexpensive for the customers who could just go get them from Amazon or wherever. The cost and impracticality of it is what makes it unlikely.
Most other sorts of works aren't transmitted freely from hither and yon. A hardcopy book would be even worse than a DVD. Ebooks aren't broadcast for free like OTA TV. Web pages are more easily viewed in the user's own web browser directly, rather than paying Aereo a monthly fee to be a middleman for no good reason.
So I don't think it's very likely that the Aereo model will spread beyond free, OTA TV.
They are doing these so-called "private performances" for anyone who wants to use their service among the general public
No, they're allowing anyone among the general public to make their own individualized recordings of OTA TV signals. Once the recording is made, it's not performed publicly, and it's not shared around.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
[blockquote]Let me repeat this, so it's clear: In the US, commercial TV broadcast is funded by advertising time. (And, in part, by selling rebroadcasting rights to cable channels.) That's why it's been classically "free" off-air to viewers. It's a different model from other countries, where you get taxed for owning a TV. The only exception is the US government sponsored PBS channel, which is still "free" to receive but is funded in part by income tax.[/blockquote]
The above model is seriously messed up in many areas were you can't receive more than 1-2 over-the air channels and need cable just to get the main 3 networks.
What's worse, IF we have cable , rebroadcast rights have already been paid by the cable company. I bitched to the cable company about having to pay extra for digital to get free-off-the-air digital channels. Comcast in my area is a monopoly, and sets their prices as they wish.
The TV broadcasters, sounds like they are simply making a play to demand more money from end-users. It's nothing about their rights being violated. Their rights have been paid for by cable and advertising fees. Now they want more just because I can record something and watch it elsewhere?
It's all about the entire entertainment industries desire to move to paying for each "play" of "their material"....
Notice how distribution is shifting away from hard goods -- and even they often need online connections for stuff to be validated? You can't buy many goods anymore -- just "license them"... which should be crap.
The allegation that Aereo doesn't disrespect copyright is irrelevant to the issue that I believe that they do. Since I *DO* believe that they are disrespecting copyright, the objection is morally grounded. Even if the objection were invalid to the situation, it would be no less moral because of it.
File under 'M' for 'Manic ranting'
I think more people simply need to cave to the demands of common sense and stop paying for cable television in the first place. Especially when they get broadcasts for free of many if not all of the shows they think they need cable to watch.
In SOVIET RUSSIA... erm...NSA AMERICA, the Internet logs onto YOU!
Not leased. Owned. Bought and sold. In perpetuity.
What, you don't have a broadcast license, too?