I find the use of "innovation" here irritating. There's nothing "innovative" in 2014 about a service that streams TV over the internet. The only thing "innovative" about Aereo is its legal strategy of exploiting a loophole in the law.
"Exploiting a loophole in the law" - does that phrase really mean anything? Aereo did their system in a way that very carefully conformed to the law. The bizarre system that resulted is a reflection of the contorted, illogical, false-to-fact nature of copyright law, more than "exploiting a loophole".
There's nothing "contorted" or "illogical" or "false-to-fact" about the copyright law in this case. The studios spend a lot of money to make this content. Users want to watch this content. To redistribute this content to users, you have to pay money to the people who created it. There is a narrow exception for free over the air TV. Aereo tried to shoehorn their internet streaming service, which is functionally no different than something like Hulu, into this narrow exception. The Supreme Court basically said: "if it quacks like a duck it should be treated like a duck."
> There's nothing "contorted" or "illogical" or "false-to-fact" about the copyright law in this case.
The whole thing is contradictory. If the broadcasters broadcast for free over the air and local cable companies retransmit to local customers for free because it increases customer exposure to the broadcaster's advertising, that would be consistent. If over the air viewers had to pay to subscribe and broadcasters also charged cable companies to retransmit, that would also be consistent.
Allowing viewers to watch for free over the air but charging money if you watch via a cable wire is an illogical contradiction that the broadcasters successfully lobbied to have codified into the Copyright Act.
It's illogical, but not in a way that's fatal to copyright. If the broadcasters have control of the content, they can license its usage downstream as they see fit.
So it's stupid, but not self-contradictory. The law can be enforced with no contradictions.
> So it's stupid, but not self-contradictory. The law can be enforced with no contradictions.
Until you have a technology which is neither over the air transmission nor cable TV and there is no logical way to classify it as one or the other because the original distinction had no intelligible justification.
So, what's the maximum length of cable I can between my antenna and my tee vee, and not be in violation of copyright law?
The problem I have with a "quacks like a duck" test is, in analogy, "Your honor, it sounded like a coot to me". That is, it's not a test I can apply by myself. I have to go ask The King of All Duck Sounds if it's a duck, a coot, a widgeon or maybe a grebe.
And that's fine, if we're all interested in a society where we get permission to do anything. If that's what we are going to have, I just want those permissions to extend to all, and for Lee Greenwood to be banned from singing "Proud to be an American". Otherwise, we're going to end up with a de facto aristocracy and underclass situation. Which is prima facie bad, legal or not.
I think this is key "To redistribute this content to users". The redistribution is not that far from what's currently OK right now, though. Is it illegal (right now) for one to record (using an antenna) on to a TIVO and then to watch said recording over the internet for yourself?
There is 1 antenna per user.
There is 1 recording per user (Aereo is not recording a single instance of desperate housewives and then muxing that out to everyone).
It is over the network.
Other than not owning the means of reception and means of storage, I don't see much of a difference between this and in home recording.
The difference is obvious: when you're home recording, you're doing it for yourself, while Aereo is doing it for others. The fact that it's using 1 antenna/recording per user is an irrelevant technical detail.
What's the difference between me clicking on my remote to tell tivo to record for me than me clicking on a button in a web page telling aereo to record for me? It's still being done on request, no?
Aereo controls what gets recorded, TiVo (the company) doesn't. They're not selling an agnostic tool, they're selling the recording of a particular set of channels.
Not sure that this is true from a technical level, but from a customer level, I actually choose the shows to be recorded in a similar fashion that I would use TiVo. Aereo only records what you schedule to be record when it comes to their DVR portion of the service.
How does Aereo control what gets recorded? I click to record a show in the interface. That tunes the antenna to that channel at that time and records an individual recording for me.
Choosing where to place the antennas largely affects the who can sign up for the service. Antenna placement does not cause me clicking "record channel 4 at 7:30 pm" to become "record channel 7 at 9 am".
It's still you who are recording, not the 3rd party. If I purposely hit someone with my car, the car manufacturer can't be blamed, but if I tell my driver to hit someone and he does, shouldn't he be blamed?
Not anymore than I'm driving through my driver. Aereo controls what gets recorded, not the user. They're not an agnostic tool that can be used for any purpose, like a VCR.
Oh, I would never suggest that. I think what Aereo does should be legal. But judges are supposed to uphold the existing law, not what they think it should be.
Don't forget that while users want to watch video entertainment, quite a lot of users have no specific preference as to what they watch. Each consumer has no more than 24 hours in a day to devote their undivided attention to something.
Studios are in a competitive environment. Not only do they have to fight other current studios for monetizable customers, they have to compete with the entire corpus of existing works. Fringe has to compete with X-Files. Law and Order: New Episode has to compete with Law and Order: Rerun.
In order to make money from customers, there must be an intact distribution path between supplier and consumer. In the world of physical goods, you cannot sell a Chinese widget to Joe Merica without a cargo ship, a stacktrain, an intermodal truck, a big-box store, its parking lot, and the roads between it and Joe's house or business. All that has to be paid for. It is completely unreasonable for the overseas manufacturer to expect that he be paid by all those links in the supply chain for the privilege of carrying the goods.
The manufacturer has to pay them a portion of what he earns from Joe on the sale, because without them, he cannot get Joe's money at all. The transport network provides value to the manufacturer because it increases the potential size of his market. Likewise, the manufacturer provides value to the transport network by giving it something to move. Neither one can even try take the whole pie, or it ceases to exist.
The distributor has to pay the supplier. But the supplier also has to pay the distributor.
In the case of broadcast television, the problem of who pays whom is partially resolved by advertising. Advertisers pay the supplier for access to their customers' attention, and the supplier can therefore pay distributors in proportion to the number of customers they can provide.
This is why broadcasters pay so much for licenses. Over-the-air radio broadcasts can bring in a huge number of customers with relatively low infrastructure investment. As long as they are paid by advertisers on a per-viewer basis, there is no reason why they should be getting any additional money from anybody for rebroadcasting rights... except one.
If the rebroadcaster is not providing the same number of consumers for the advertisers as for the entertainment content, the supplier is not getting paid for them. Enter the commercial-skipping DVR. The advertising model breaks down. The advertisers have to assume that every person not watching a show live is skipping their ads, so they only pay for the live audience.
And so castles made of sand fall in the sea eventually.
If any necessary part of the supply chain is not paid for, the money dries up for everyone. And the advertisers are paid with statistics. Aereo probably could have made this go away simply by offering up timestamps and button presses, to identify the number of customers actually watching the ads.
The problem is Aereo is charging for this service that circumvents the system and pays nothing back to redistribute the content.
Contrast this with the lesser known, but competing service offered from Syncbak.
Syncbak does the same thing as Aereo, but rather than circumventing the existing networks and content providers; those are Syncbak's paying customer base.
The advertisers already paid for content to be distributed. The broadcasters aren't even missing out on theoretical revenue cause no subscriber pays for over the air tv. If anything they could increase ad revenue claiming more viewers.
I'm missing something... Cause I don't see why broadcasters are against Aero at all. Is it cause cable companies pay broadcasters for content and people think Areo will cut into that?
You're missing that broadcasters transmit to a select geographical location, so they can still sell the transmission to cable and satellite networks. By making it cheaper to watch those channels outside of the areas covered by OTA broadcasts, they're making it easier for current cable subscribers to "cut the cord".
Aereo makes new users sign up with a credit card linked to a zip code within the OTA broadcast range of the metros that they operate in. The users then get the channels that are available in that area. See https://www.aereo.com/channels
Theoretically Aereo makes it more expensive to watch these channels(but easier and more reliable) than a one time purchase of your own antenna.
If Aereo were ruled legal today, the cable companies would figure out tomorrow how to duplicate Aereo's position and avoid paying the broadcasters any fees.
By statute, broadcasters can choose whether a) local cable companies are required to carry their networks [which is why public access still exists], or b) to negotiate for the rate, which lets the cable company walk away if they cannot come to terms.
>The problem is Aereo is charging for this service
To me that's like saying Sony who charges $150 for an outdoor digital antenna, RCA who charges $80 for a signal amplifier, and the installer who charges $500 to rig it all properly should all pay the content owners because they enabled me to watch the freely available content.
I could pay Aereo a small monthly charge or I could modify my house at great expense and end up with the exact same outcome. I don't see the difference.
The concept of "loophole" seems to be a loaded way of saying "specification in the law with which I disagree".
We hear all the time about people taking advantage of tax loopholes, for example. Yet these very loopholes are generally designed-in, to push people into a particular behavior. For example, I could pay less tax this year if I had solar cells installed on my roof. Would you call this means of avoiding taxes a loophole?
Modern politics is, as much as anything else, about finding ways to coerce people into the behavior you want. We set up huge taxes on tobacco, for example, to try to cut down on smoking. We help pay back student loans in order to get people to take up teaching. But most of us wouldn't criticize someone for becoming a teacher, saying they're taking advantage of a loophole in student loan agreements.
I can't see a principled way to draw a line in this, other than to simply accept laws for what they are, and similarly accept those who conform to the law as "law-abiding".
The solar panel example is not a loophole. It is a feature. A loophole would be an unintended side effect of designed behaviour. People who pass laws have intent; the courts interpret the meaning of the law and try to divine that intent; a loophole is where a law was passed to prohibit a behaviour but was poorly drafted and leaves a gap for someone to carry on doing the otherwise prohibited behaviour.
I agree that drawing a line is tricky. Certainly people are law abiding unless they are not obeying the law. But that doesn't stop me asking if people are obeying the letter and spirit of the law, and forming an opinion based on the result.
"Exploiting a loophole in the law" - does that phrase really mean anything?
For the general public, sure, all citizens may advocate for different laws. In the context of a Supreme Court decision, it's much less clear. Is the court really charged with deciding what the law should have been, if only those idiot legislators hadn't mistakenly put in yet another loophole? (Aside: does anyone really think these are mistakes?) Surely the court would be on firmer ground interpreting the laws as written.
Yes, it does mean something. Laws have intended effects; they are a mechanism to achieve some goal. "Exploiting a legal loophole" means finding a way to conform to the mechanism itself, but avoid that goal.
Maps typically describe their purpose honestly and plainly (e.g. The Americas circa 1805). The "honest and plain" intentions of the laws produced in the US are rarely provided.
No, the phrase "loophole in the law" does not mean anything anymore. There may have been a time when it was fairly used to describe tax cheats but things are not so black & white now.
I won't concede that point, but even assuming you're right: there's nothing "innovative" about the business model of distributing in-demand content for profit without compensating the content creators.
I disagree. To be honest Aereo's service was about as reliable as your average antenna is (read: not reliable.) To me it felt like I was renting a really large extension cord for a cable. One that I need because I live in a basement apartment and even with 60 dollar antennas I get spotty reception at best. Aereo was more consistent but the quality was that of what you would expect from an antenna. It didn't feel like someone was recording 1080p HD quality from cable and then streaming it to me. Cable is not just crummy antenna quality that is then piped to the home. They get high quality from the channels.
Broadcast DTV usually looks better on an antenna than on cable.
I recently gave a pair of rabbit ears to my mother-in-law and we were amazed at how much better the picture quality was. She's lucky, howver, to live about a mile or two from the sticks. Most people need a better antenna.
Cable HDTV is often heavily compressed so they can fit hundreds of junky channels into a limited pipe. Particularly for sports where there is fast motion and fine detail, the difference is night and day.
So, I just spent the last two months working out the details of how to put a digital cable channel on a hotel cable headend. I have some clarification of what may be going on here.
Cable headends tend not to have very much compression equipment, sometimes they have stuff used for feeds local to the headend, but usually the compression happens at the originating facility. For something like CNN, this is at their studio. The signal with that original compression is encrypted, uplinked to the satellite and then received off the satellite by receivers at the headend. It comes out of that receiver as a compressed digital signal called ASI, which is MPEG2 compressed video over SDI. It is then typically fed into a demultiplexer/multiplexer that will combine or separate it into different streams and then it is fed into a QAM modulator. For ATSC the same is fed into a 8vsb modulator (or something like that). For encrypted systems it is fed into a encryption unit before being fed into the QAM modulator. The key here is that each video stream is not recompressed even when it is remultiplexed.
The issue may be that of signal strengths and associated error rates and how that is reflected in encrypted streams. Typically encryption cases degradation to be reflected poorly in the signal compared to unencrypted signals.
I get better quality video from my antenna than through cable. In my experience the tv station uses less compression than the cable company. And since the switch to digital OTA video the picture has been rock solid.
I've had this experience in both Columbus, OH and Phoenix, AZ.
Well, for the first time in a long time I agree with something Scalia says...Congress is the body that opens loopholes in the law, and it's their job to close them. Not the court's.
