Supreme Court Rules Against Aereo Streaming Service

New submitter Last_Available_Usern (756093) writes that the Aereo saga is likely over. "The U.S. Supreme Court today dealt a potentially fatal blow to Aereo, an Internet service that allows customers to watch broadcast TV programs on mobile devices by renting a small DVR and antennas (in supported cities) to record and then retransmit local programming on-demand over the internet." Ruling (PDF). Aereo was found to be publicly transmitting, according to SCOTUSBlog "The essence of the Aereo ruling is that Aereo is equivalent to a cable company, not merely an equipment provider."

Comments

One disturbing bit:

[Penguinisto]

Justice Stephen Breyer, writing for the majority, stressed that it was a limited decision that will not “discourage the emergence or use of different kinds of technologies.”

...and he's certain of that - how?

Re:One disturbing bit:

[Anonymous Coward]

Because he's a Supreme and you are... sitting in your mom's basement?

Re:One disturbing bit:

[Thanshin]

Three options :
A - By divine revelation.
B - By using his time machine.
C - He isn't certain, but doesn't care.

I've personally decided to believe B because I'm a optimistic atheist.

Re:One disturbing bit:

[Beeftopia]

He's not: "As Stephen Breyer, one of the Supreme Court justices, said in this week’s hearing, “What disturbs me is I don’t understand what the decision for you or against you is going to do to all kinds of other technologies.”

It seems to me that judges should be ruling based on the law, not perceived ancillary social influences. That's why we have three branches of government: legislative, executive and judicial. Legislative makes the law, and judicial merely determines if actions are legal or not legal? Quaint, no?

Re:One disturbing bit:

[DarkOx]

D - The court actually does mean for the ruling to be narrow; does not see this case as setting a strong precedent and will grant certiorari for what might otherwise be seen as similar media delivery technology cases

Re:One disturbing bit:

[hendrips]

He almost certainly means that from a strictly legal standpoint, rather than as a general statement. It's somewhat common for the Supreme Court to put a disclaimer in an opinion stating that the opinion was so narrowly focused that it shouldn't be used as a precedent in other seemingly analogous cases. Presumably, this comment is more of a command to the lower courts, rather than a prediction of the future.

So, if Company X wants to start a business that is similar to, but not exactly the same as, Aereo's business, any legal challenge against Company X would still have to be upheld on its own merit. Challengers couldn't cite this Aereo decision as legally relevant.

Now, whether this ruling will have chilling effects, other than its legal precedent, is a different question.

Re:One disturbing bit:

[bluefoxlucid]

The supreme court is different. They're supposed to look at issues and decide if this is how our country was supposed to work. If certain actions criminalize a religion without just cause (i.e. the criminalized set of acts is representative of a harmless behavior, or a set of non-criminal acts that only happen under this religion in this way), the Supreme Court may interpret not only that religion is a shield (i.e. Peyote for shaman religions), but also that the law has no other reasonable purpose and is thus wholly invalid so it can fuck off.

That doesn't mean they always do a good job of it; I only intend that the supreme court is tasked with interpreting the standing of the law itself as well as the standing of the law against a person.

Re:One disturbing bit:

[SydShamino]

On the other hand, if you contracted with your neighbor to rent a patch of his land, and you ran your own antenna up there so you could get the OTA signals yourself separately from his reception, that should be A-ok. That's even true if he already had a spare antenna installed and you just rent it from him.

Re:One disturbing bit:

[sjbe]

It seems to me that judges should be ruling based on the law, not perceived ancillary social influences.

For lower courts that is (largely) true but for SCOTUS it is not. The Constitution is not 100% black and white and many aspects of it are open to interpretation. The job of SCOTUS (and lower federal courts to some extent) is to provide that interpretation when there is a disagreement. This interpretation effectively is identical to making legislation. Furthermore interpretations over time tend to reflect the morals and social influences of the day. Cases like Dred Scott v Sandford once upheld interpretations of the law that today would be considered reprehensible. At some level the decisions that SCOTUS judges make reflects their belief systems, particularly on hot button topics like abortion where decisions are based more on personal morality than objective evidence. That's why we have 9 judges instead of just one.

Legislative makes the law, and judicial merely determines if actions are legal or not legal? Quaint, no?

Each branch of the government makes certain types of laws. The Legislative branch makes statues, the Executive branch makes regulations and the Judiciary makes case law. All three are necessary and proper to the functioning of civil society. All three are laws in every sense that matters. If any branch of the government was unable to make laws then that branch of government would be powerless against the other branches. Checks and balances only work if you can make laws.

Re:One disturbing bit:

[MrLint]

As long as the trailer and voiceover bits are done by Nina Totenberg

Re:One disturbing bit:

[Solandri]

I haven't read through the ruling, but I suspect they just applied the "quacks like a duck" rule. Regardless of the technical nuances, Aereo operates like a rebroadcaster (takes services subscriptions, forwards broadcast transmissions to them). Therefore it must be a rebroadcaster.

I suspect the ruling may have been different if Aereo had required customers to buy their own antennas, and only charged an installation fee to host the antenna and monthly hardware insurance fee to replace broken ones. To draw from the analogy someone posted below, that'd be like you buying your own antenna and asking to place it on your neighbor's property because he sits on top of the hill blocking your house. Dynamically assigning a micro-antenna to a subscriber on-demand just blurs the line. (The fact that all this is technically stupid when you could just use a single antenna is simply a consequence of Copyright law creating artificial scarcity and giving content producers a monopoly on distribution.)

Re:One disturbing bit:

[TemporalBeing]

No, he's basically saying that they issued a very limited ruling that really applies to Aero and extremely similar cases and not ruling the general case that affects everyone. The wording is making that clear to lower courts.

Re:One disturbing bit:

[jratcliffe]

You don't remember correctly. Breyer voted against Citizens United.

Wrong decision

[ArcadeMan]

If it requires a login/password and a user account, how is that "publicly transmitting"?

Would the judge also declare that when I'm watching Netflix via wi-fi, I'm also "publicly transmitting"?

Re:Wrong decision

[bobbied]

Wouldn't the ruling also make cable boxes illegal, too?

The cable network is a public network in the sense that hundreds or thousands of people are on that network.

Uh, no... The ruling simply says Areo is operating a cable service and is thus required to obtain rights to retransmit the material (by paying fees). The cable company has already obtained retransmit rights (and paid the necessary fees) and thus can place their box in your home.

In short, Areo is governed by the SAME laws and rules as the cable company.

Re:Wrong decision

[RealGene]

Scalia agrees with you:

"Unlike video-on-demand services, Aereo does not provide a prearranged assortment of movies and television shows. Rather, it assigns each subscriber an antenna that — like a library card — can be used to obtain whatever broadcasts are freely available. Some of those broadcasts are copyrighted; others are in the public domain. The key point is that subscribers call all the shots: Aereo’s automated system does not relay any program, copyrighted or not, until a subscriber selects the program and tells Aereo to relay it."

Re:Wrong decision

[bluefoxlucid]

Imagine you rent an apartment in San Francisco, hook your DVR up to the antenna, and set up Internet to watch it from New York.

Now imagine you rent that DVR from an electronics rental company.

Now imagine you also get an account with LogMeIn as your access method to your DVR.

Now imagine the landlord, the electronics rental company, and LogMeIn are all the same company.

That's Aereo.

Re:Wrong decision

[Anubis IV]

Here's the actual decision text: http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf

It's "publicly transmitting" inasmuch as the people it is transmitted to are "unrelated and unknown to each other", to quote the actual decision. Netflix very likely would be considered to be publicly transmitting as well, but because they've worked out licenses with the content owners, they're not running into any of these problems.

Mind you, I'm not suggesting by any means that I agree with the decision. I'm merely providing it.

Disclaimer: IANAL.

Re:Wrong decision

[BadgerRush]

So it is ilegal to watch TV at my office because I can't sleep in my office?

And a person living in a basement (you know, like the tipical slashdoter), can never legaly get aerial TV because that would entail puting an antena and running a wire on other person's roof?

They didn't "profit by selling everyone else's content", they profited by selling access to publicly available content to which the clients already had the right to watch but didn't have the tecnical means do do so. They where just a antena renting service.

The TV channels decided to distribute their content for free, it shouldn't be ilegal to provide means for people to reach this content. If a drive-in theater decides to screen films for free that doesn't make it ilegal for taxis and buses to charge to ferry people to the theater.

Re:This now requires

[compro01]

No, nothing about this ruling was based on the constitution. It was ruling whether or not Aereo fell under the provisions of the Cable Television Consumer Protection and Competition Act of 1992, specifically the provisions requiring cable TV system operators to pay broadcasters to carry those channels.

Fixing this would simply require an amendment to that act.

Re:Predictable

[am 2k]

So, why is the spirit of the law ignored when it comes to tax code? Why are there so many companies with their seat in places like the Cayman Islands or San Marino, while 99% of the work force is in other countries like the US or somewhere in the EU? They still don't have to pay any taxes.

Re: Remind my why they are being sued

[VTBlue]

Most people think broadcasters still operate under an ad revenue model. This not true today. Cable retransmission deals is where the real money is. If broadcasters were limited to the old ad revenue model, the industry would implode.

Personally I think we should have the UK model with a TV license. The programming is far superior and enriching to the minds of the citizenry.

Re:This now requires

[jratcliffe]

Actually, it was more based on the amendments the Congress made to the Copyright Act in 1976, to overturn two previous Supreme Court decisions (Fortnightly and Teleprompter). The Court had ruled that CATV (Community Antenna Television, which is exactly what it sounds like, put up one big antenna, and run coax from there to people's houses; it was used to get signal to areas that couldn't get good broadcast quality) was outside the scope of the Copyright Act, and Congress changed the law to clarify that it was.

In Aereo, the Court ruled that Aereo was largely similar to those CATV operators - it took the broadcast signal off the air and distributed it to multiple viewers, essentially simultaneous.y.

Re:This now requires

[Ungrounded Lightning]

In Aereo, the Court ruled that Aereo was largely similar to those CATV operators - it took the broadcast signal off the air and distributed it to multiple viewers, essentially simultaneous.y.

And that receiving and carrying it separately for each customer (using a separte tiny antenna and cheap-in-quantity integrated circuit digital radio receiver) was a transparent workaround that attempted to use an interpretation of the letter of the law to violate its intent).

The key distinction in the ruling

[cpt kangarooski]

This case boiled down to one major issue: Whether the allegedly infringing conduct in this case was engaged in by either Aereo, or by its users. Don't get hung up on the public performance v. private performance issue; it was really certain that if Aereo was liable, that the performance was public; if it were the users, it would be private.

J. Scalia's dissent does a good job of explaining the issue:

There are two types of liability for copyright infringement: direct and secondary. As its name suggests, the former applies when an actor personally engages in infringing conduct. Secondary liability, by contrast, is a means of holding defendants responsible for infringement by third parties, even when the defendants âoehave not themselves engaged in the infringing activity.â It applies when a defendant âoeintentionally induc[es] or encourag[es]â infringing acts by others or profits from such acts âoewhile declining to exer- cise a right to stop or limit [them].â

Most suits against equipment manufacturers and service providers involve secondary-liability claims. For example, when movie studios sued to block the sale of Sonyâ(TM)s Betamax videocassette recorder (VCR), they argued that Sony was liable because its customers were making unauthorized copies. Record labels and movie studios relied on a similar theory when they sued Grokster and StreamCast, two providers of peer-to-peer file-sharing software.

This suit, or rather the portion of it before us here, is fundamentally different. The Networks claim that Aereo directly infringes their public-performance right. Accordingly, the Networks must prove that Aereo âoeperform[s]â copyrighted works, Â106(4), when its subscribers log in, select a channel, and push the âoewatchâ button. That process undoubtedly results in a performance; the question is who does the performing. If Aereoâ(TM)s subscribers perform but Aereo does not, the claim necessarily fails.
The Networksâ(TM) claim is governed by a simple but profoundly important rule: A defendant may be held directly liable only if it has engaged in volitional conduct that violates the Act. ...

A comparison between copy shops and video-on-demand services illustrates the point. A copy shop rents out photocopiers on a per-use basis. One customer might copy his 10-year-oldâ(TM)s drawingsâ"a perfectly lawful thing to doâ" while another might duplicate a famous artistâ(TM)s copyrighted photographsâ"a use clearly prohibited by Â106(1). Either way, the customer chooses the content and activates the copying function; the photocopier does nothing except in response to the customerâ(TM)s commands. Because the shop plays no role in selecting the content, it cannot be held directly liable when a customer makes an infringing copy.

Video-on-demand services, like photocopiers, respond automatically to user input, but they differ in one crucial respect: They choose the content. When a user signs in to Netflix, for example, âoethousands of . . . movies [and] TV episodesâ carefully curated by Netflix are âoeavailable to watch instantly.â That selection and arrangement by the service provider constitutes a volitional act directed to specific copyrighted works and thus serves as a basis for direct liability.

The distinction between direct and secondary liability would collapse if there were not a clear rule for determining whether the defendant committed the infringing act. The volitional-conduct requirement supplies that rule; its purpose is not to excuse defendants from accountability, but to channel the claims against them into the correct analytical track. Thus, in the example given above, the fact that the copy shop does not choose the content simply means that its culpability will be assessed using secondary-liability rules rather than direct-liability rules.

So which is Aereo: the copy shop or the video-on-demand service? In truth, i

Re: Remind my why they are being sued

[VTBlue]

I lived in the UK as an expat for 3 years. My boss who recruited me at the time mentioned often how she could never stand to watch the TV in America. I didn't understand what it was until I started watching UK TV. At first it was really annoying because advertising was limited to mostly insurance ads, and a few household goods. Then it dawned on my how little diversity there was. I had probably gone 6 months without ever having seen a movie trailer or annoying news promos shouting at the viewer. In general, watching UK TV was either a calming or relaxed experience. The volumes were lower, the banter more intelligent, and though I gag at saying this, "it warmed the soul." Fast forward three years later coming back to the US. TV is loud, obnoxious, alarming, and basically rile up the viewers. I even learned to the cook decently simply by watching shows by Gordon Ramsay and Jamie Oliver. CNN International was a joy to watch. I can't tell you all the amazing Ricky Gervais material we are missing here in the States. The kicker is that they still have all the best US shows!

Some aspects are very subtle, others are clearly apparent. An example of this watching the news. Compare Canadian or UK news with what we call news in the US. It's truly laughable here with respect to tv news.

I'll take UK TV over US broadcasting anyday.