Aereo To SCOTUS: Shut Us Down and You Shut Down Cloud Storage

jfruh (300774) writes "Aereo is currently fighting for its life before the Supreme Court, and has issued a warning: if you take us down, you could take the entire cloud storage industry down with us. The company argues that they only provide customers with access to shows picked up by an individual antenna that they've rented. If the constitutes a 'public performance,' then so does the act of downloading a copyrighted document stored in a cloud storage service — even if the customer has purchased the right to use that document." v3rgEz sent in a link to the transcript of the first day of arguments.

Comments

How many?

[Opportunist]

Just how many industries will we allow the content industry to ruin in its death throes before we finally get wiser?

Re:How many?

[gstoddart]

Just how many industries will we allow the content industry to ruin in its death throes before we finally get wiser?

All of them.

Technology is reaching the point where the content industries more or less have to give permission for everything it gets used for.

And, anything which they interpret as cutting into their revenue stream or otherwise making it possible to copy something, is going to be vigorously fought by them.

This is the buggy whip makers telling us that we need their permission to design highways. And innovation will suffer.

Re:How many?

[SuricouRaven]

People never wanted buggy whips. People wanted transport. Buggy whips were just a means to that end.

Re:How many?

[Altus]

So what, cloud based DVR is not not acceptable? Why is time shifting OK in a box in my livingroom but not on a box at some hosting service? Does it matter if I own or rent the actual server that is being used for the time shifting? What is so important about the internet that it invalidates the rights we have elsewhere?

Re:How many?

[ravenscar]

Ahahahahaha! Are you joking? Comcast and Time Warner ARE content companies. That's the whole problem. Content providers should be completely separate from internet providers. When they aren't, the internet/content providers have incentive to make sure their content is unfairly promoted/protected on their networks. If you think Comcast/Time Warner will ever stand up to content companies I've got some wonderful property in the Everglades in which you might be interested.

Re:How many?

[gurps_npc]

You are incorrectly confabulating broadcasting with content producing.

It is not "content producers" that people don't want because guess what it isn't the content producers that are suing Aereo.

Instead it is the over the air broadcasters that are suing and no one wants them. They are not all the producers and not all of them produce content Back before we had internet, cable TV, and satellite TV, actual over the air broadcasting made sense. But not any more.

People do want the content - which is why content producers will continue to exist. People do NOT want to receive it by broadcast, which is why people want Aereo to take that junk off the air and put it on wires.

Yes it is true that the broadcasters used to be wealthy and therefore bought up most (but not all) of the content producers. Now the broadcasters are going the way of the Buggy Whip. They may be able to survive as content producers, but only if they stop trying to marry their content production to their horrible, stupid delivery system that few people want and is only be propped up by out-dated laws.

If they insist on sending their wonderful content out on horrible radiowaves, then they will have to do so a week after they offer them to cable operators (just like Hulu does with Hulu prime.). You want the stuff right away, pay for it. If you don't care, wait for for it.

Re:How many?

[gstoddart]

Ah, yes, the stupid old 'buggy whip makers' argument.

Yawn ... ah, yes, the it's stupid because I say so argument.

Do you know the origins of the term? This might help:

Marketing myopia is a term used in marketing as well as the title of an important marketing paper written by Theodore Levitt.[1] This paper was first published in 1960 in the Harvard Business Review, a journal of which he was an editor. Marketing Myopia suggests that businesses will do better in the end if they concentrate on meeting customers' needs rather than on selling products.

The Myopic culture, Levitt postulated, would pave the way for a business to fail, due to the short-sighted mindset and illusion that a firm is in a so-called 'growth industry'. This belief leads to complacency and a loss of sight of what customers want.

[snip]

There is a greater scope of opportunities as the industry changes. It trains managers to look beyond their current business activities and think "outside the box". George Steiner (1979) is one of many in a long line of admirers who cite Levitt's famous example on transportation. If a buggy whip manufacturer in 1910 defined its business as the "transportation starter business," they might have been able to make the creative leap necessary to move into the automobile business when technological change demanded it

So, how about this ... you refute the underlying thing meant when most of us say "buggy whips", and I won't tell you how little I care about how you feel about the specifics of the metaphor. Sound fair?

The point is, in the face of technological changes and advancement, instead of understanding what it is people actually want and enabling it, these companies are demonstrating short-sightedness, an unwillingness to adapt their business model, and due to lobbying and other crap, exert an undue level of control over industries relating to technology which is both unwarranted, outdated, and has an overall detrimental effect on progress by people who don't have their heads up their asses.

Now, if you have anything intelligent to add, I'm all ears. If you're going to simply dispute the metaphor keep it to yourself.

Re:How many?

[Nyall]

Does Aereo remove the advertisements those broadcasters placed into the stream? If not then how are they taking away a source of revenue?

Re:How many?

[geminidomino]

the basic concept behind copyright law is in the Constitution - creators shall have exclusive right to their works... for a limited time, in exchange for releasing it into the public domain at the end of that period, for the enrichment of American culture

FTFY.

Funny how so many people forget the more important second half.

Not sure how I feel about this one

[Jmstuckman]

From a legal basis Aereo's business model seems sound to me -- all they're doing is helping me receive a broadcast TV transmission which I'm entitled to receive over the airwaves anyway.

On the other hand, a ruling in Aereo's favor would be a boon for the cable companies and could kill the concept of free, broadcast TV altogether. As things stand, the cable companies pay the networks to retransmit feeds of their programming. If Aereo wins, the cable companies would be able to save money by erecting Aereo-style antenna arrays for their cable feeds, bypassing payments to the networks.

As things stand, cable customers are getting screwed because they're paying the broadcasters for the same programming twice -- once in the form of advertisements, and again by paying for the network broadcast feeds. On the other hand, by using my own antenna, I'm receiving dozens of free channels which are being subsidized by the cable customers. If Aereo prevails, broadcasters may terminate over-the-air broadcasts altogether to avoid losing their lucrative royalties from the cable companies, leaving me out in the cold.

Re:Not sure how I feel about this one

[CohibaVancouver]

the cable companies would be able to save money by erecting Aereo-style antenna arrays for their cable feeds

This is how 'cablevision' used to work. They'd put up a big antenna that could pull down signals you couldn't and then distribute the signal around a town, for a fee.

Re:Not sure how I feel about this one

[petermgreen]

If Aereo wins, the cable companies would be able to save money by erecting Aereo-style antenna arrays for their cable feeds, bypassing payments to the networks.

I doubt it, Aereo's legal position relies on one antenna per user. That also means one data stream per user.

So switching to doing things aereo style would require a cable company to massively re-engineer things.

Over the air

[Cmdr-Absurd]

(IANAL). I was quite surprised this even reached the high court. The broadcasters have a revenue model of paying by putting ads in front of eyeballs. This service arguably helps them meet that goal. Yes, I'm sure they'd like to double-dip and get paid for the "rebroadcast," but if you are giving your product away for free over the public airwaves, you should not be allowed to complain about where folks choose to locate their antennas. Be happy for the extra eyeballs.

Re:Doubt it will shut down cloud storage...

[Anonymous Coward]

mp3.com stored a single copy of each song - and streamed copies of that shared song to users who had shown (by inserting a CD or buying the song from a mp3.com associate) that they owned it. While mp3.com claimed that they were protecting individual Fair Use (or was it First Sale?) rights, the technical point on which they were crucified was not the streaming to individual users, but the creation of the shared database (for their own commercial benefit).

In the Aereo case, they are not taking the signals from a single shared antenna (or from a small group of shared antennas) and replicating them. That would open them to the sort of attack that destroyed mp3.com. Instead, Aereo is taking the technically-very-ugly, but legally-more-likely-to-be-sound approach of having huge farms of micro-antennas, and renting individual antennas to individual customers. It is the broadcast signals from the plaintiffs that are replicating the programs – same as if the broadcast signals hit an equivalent number of rabbit-ears antennas in an equivalent number of houses.

Real problem was law letting the networks charge

[gurps_npc]

Some idiot decided that it was reasonable for people that broadcast their programing over the air for free to then charge other people to retransmit it.

It was a bad law in the first place, poorly written, which let the networks charge money to cable people when their entire original business was charging advertisers and giving their stuff away for free.

Suddenly you let them charge others for their stuff that they agreed to give away for free originally and this caused the problems.

Aero are not doing anything wrong. The people doing wrong things are the over the air free TV networks that are charging.

The real truth is that the over the air for free model is OUTDATED - just like the buggy whips. I know of nobody actually using the radio waves. They only work in small areas and are only profitable if there is a large population. But in those areas you get so much more from cable TV.

In areas with less population, the over the air broadcasters are not profitable.

Don't understand Aereo's lawyer

[Chirs]

One of the justices asked flat-out if there were technical advantages to having multiple antennas or if it was just a way to get around copyright, and the lawyer dodged the question.

*Of course* the primary reason for having multiple antennas is copyright. It is exactly *because* they have multiple antennas that what they're doing is legal under current copyright law. By ducking and evading the question, the lawyer just looks shady.

From a technical point of view they'd be far better off with a pair of redundant antennas, storing all the shows from all the channels (with deduplication), and then serving them to their subscribers on demand. But that's clearly not allowed under current law.

Question about rebroadcasting

[MobyDisk]

Suppose I rent an apartment in New York, and I setup an antenna to pick-up New York broadcasts. Then I stream those broadcasts to my TV at home. Have I illegally retransmitted the signal and I need to pay a licensing fee?

Re:Real problem was law letting the networks charg

[Ronin Developer]

First, the primary networks are required, by law, to provide OTA service. They were also required to transmit in digital vs the older, analog signal. Supposedly, the digital signals can transmit further and can support error correction (to eliminate ghost images).

As another poster noted, IF you are in range of to receive the OTA broadcast, the HD picture is of higher quality that what you would get via cable. Why? Cable network providers must compress the signal resulting in signal degradation. OTA can send the full, uncompressed digital signal. One of these days, I will have to see if I can receive the signal where I live...probably not.

Re:Doubt it will shut down cloud storage...

[PRMan]

There's no difference functionally. The difference is legal. And now they are being crucified for attempting to comply with previous court decisions because by doing so they look "shady".

Re:Prediction

[ratboy666]

What a strange thing! I guess I am allowed to time-shift broadcast TV, and I am allowed to space-shift broadcast TV. I can rent an antenna, and I can rent a VCR (PVR).

I cannot retransmit (time or space shifted or not) a broadcast to other parties (which is the difference here CATV rebroadcast to all CATV clients).

Now I have to read the arguments! About the only thing left is having an agent do the time or space shifting for me! And, of course, I can't really figure out is why the AGENT is in court for this. If my neighbour asks me to rent her some roofspace and rent her an antenna AND a VCR and then asks me to record a TV show... for which I may charge a bit for the service. And the TV network comes after someone, why would that be me? I would be inclined to laugh.

I think my lawyer would have a good laugh too. We refer you to the reply given in the case of Arkell v. Pressdram.

I guess I am not allowed to sell my labour freely in the USA. Now I REALLY have to follow this. I am personally guilty of renting antennas, and PVR (equivalent) to provide people with recordings. I never pressed a "record" button -- my customer went on-line to a web page and selected the recording themselves (using MythTV 10 years ago). I would deliver the recorded program(s) via disk drives or flash drives.

After all, if I have multiple tuners and I am not using them all, why CAN'T I RENT THEM OUT.

The only problem would have been an event like the "Superbowl" where I would have needed to have ALL my tuners capturing the same content. Instead of being efficient, you know, and sharing... Because WHERE the bits come from is important in Copyright law. See http://ansuz.sooke.bc.ca/entry...

As long as Aereo uses an antenna and receiver PER USER, the bits should be the right colour. And subject to the users rights. Including time and space shifting. Aereo wouldn't be rebroadcasting. IF Aereo IS IN THE WRONG then the question is why. As far as I can tell, they are not even being an agent for the user. They are simply renting an antenna and receiver. The actual Copyright material is NOT being shared, from Aereo's perspective. And yes, cloud storage would be at risk. For example, I quite enjoy using Kobo. I may purchase a book from Kobo WHICH IS Copyrighted. Of course. I then download to my reading device. The bits have the right colour at Kobo's end, and they have the right colour at my end. I should be able to do with those bits ANYTHING that Copyright law permits me to. And I do. There is no DRM in OTA broadcast, and typically there is DRM in Kobo electronic books. If *I* turn around and share the book, Kobo wouldn't be legally liable. The author would come after me for that. So why is Aereo being attacked here?

If the bits are simply coloured "copyrighted" and it IS authorized to the user, what else should Aereo do? Simply, Kobo is selling access to authorized bits as well, and would be AT THE SAME RISK. And, it goes deeper. Since Copyright is automatically assigned on creation, you would have NO IDEA what is ok to look at, here or touch.

Colour me completely confused.

Pirate bay

[Charliemopps]

I just want to point out to any Aereo users that should they get shut down, you can still go back to the Pirate bay and start real piracy again. It's a lot easier than this nonsense, all the commercials are edited out for you already AND if you thought you were sticking it to the broadcasting industry before, you'd really be sticking it to them now.

Re:Real problem was law letting the networks charg

[SemiChemE]

Digital signals do not transmit further than Analog signals! In fact, the range of a watchable signal is severely reduced. The clarity of the digital signal is significantly better and remains nearly perfect until the edge of the transmission range, but beyond that it completely degrades, whereas the analog signal is of poor quality, but still viable for many more miles.

Re:Doubt it will shut down cloud storage...

[AK Marc]

Whether you've been sued is irrelevant to whether it's legal. The Supremes deal with legality, not enforcement.

And the argument isn't binding. The Supremes can find against Aereo and state "the lack of a *formal* agreement and that the content was not uploaded securely by the user himself makes this a distribution by Aereo, and thus a valid legal tort" both making Aereo illegal and securing Cloud for everyone else. The fact that the argument was raised just means it will likely be addressed in the finding.

Re:Doubt it will shut down cloud storage...

[lgw]

I've rented an antenna on the roof before, publicly and commercially, with a really long antenna cable to my living room. The only difference here is "on the internet".

Of course, Roberts may just decide its a tax, so who knows. It's not like these guys follow any basis in law or constitution these days.