Supreme Court to hear arguments on Aereo this week

http://www.washingtonpost.com/business/technology/aereo-case-goes-to-supreme-court/2014/04/21/50bbd1e8-c59d-11e3-9f37-7ce307c56815_story.html

by xhrpost • 12 years ago

129 80 12 years ago

washingtonpost.com

akgerber• 12 years ago

This is a confusing headline, to me— I'd phrase it 'Supreme Court to decide on Aereo, a startup that could reshape the TV industry'

jisaacks• 12 years ago

I thought the same thing, that they had decided. This is the title of the original article though.

dang• 12 years ago

HN's guidelines call for changing the original title when it's linkbait or misleading. This one was misleading, so we changed it.

joesb• 12 years ago

But Aereo argues that it is entitled to draw freely from programs transmitted on public airwaves.

Are they talking about the data being broadcasted in public spectrum? Or that the wave travel through public air and atmosphere?

If it is the latter and that argument can be used, then would it be legal to capture cellphone communication and any wireless data?

I just don't think one should blindly accept unsound argument even if it would result in the change one wants.

endianswap• 12 years ago

They're just re-transmitting normal OTA broadcasts of TV channels intended for end-users.

rayiner3• 12 years ago

Their argument isn't that they should be able to use the data freely because it's broadcast over the public airwaves. The relevance of the public airwaves is that there is an existing compromise between broadcasters and the public such that the public is entitled to watch certain content for free over the air, in return for broadcasters being allowed to use the public airwaves. What Aereo is arguing is that their service falls within this existing compromise, because it's no different than attaching a rabbit-ear to your TV with a really long cable.

In other words, it's okay not just because the data is on the public airwaves, but because the data is on the public airwaves AND broadcasters have agreed to let the public use that data under certain conditions. This isn't quite the legal posture of the dispute, but it's the public policy essence of it.

mpyne• 12 years ago

If it is the latter and that argument can be used, then would it be legal to capture cellphone communication and any wireless data?

Actually, yes. Except that Congress has specifically made that action illegal if not done under a specific list of exceptions (e.g. law enforcement with a warrant, intelligence agencies collecting foreign intelligence under an authorization from someone at their agency with that authority, etc.)

lnanek2• 12 years ago

They do have a legal argument. They have one antenna for each user, so they claim they are just renting you the antenna, basically. Just as if you had rented the antenna and laid a long cable to their facility, then just used internet to get to the antenna instead of a cable. There are legal protections for encrypted stuff, heck the DMCA prevents bypassing just a copyright flag nowadays when backing up DVDs. But these are public TV channels anyone can watch with an antenna and the company seems to have legally constructed the same situation for its users.

DerpDerpDerp3• 12 years ago

They're talking about the stations broadcast in the part of the spectrum specifically set aside for public, free, over-the-air watching of the stations.

You know, what your TV tunes in to if you just have an antenna.

Aereo sells a service where they operate an antenna on your behalf, and essentially run a long cable to your house from one of their locations, where the antenna is located.

Your comment shows that you didn't really look in to the argument being presented before commenting - because it instantly latches on to an untrue hypothetical as to why you shouldn't agree.

Dylan168073• 12 years ago

The programs are transmitted as a broadcast for public consumption.

Cellphone and wireless are point to point communications.

The argument isn't unsound, just unclearly stated.

yahelc• 12 years ago

SCOTUSBlog has a great deepdive into the case: http://www.scotusblog.com/2014/04/argument-preview-free-tv-a...

dublinben• 12 years ago

It's really surprising that nobody else has mentioned the Cablevision ruling. That is the exact precedent that Aereo has designed their system to comply with.

joezydeco2• 12 years ago

It gets mentioned, and then another HN story pops up on Aereo and we have to review the facts and stances over again. And again.

Shivetya• 12 years ago

One oddity here is that broadcast tv is treated differently than cable/satellite only channels. the FCC enforces different rules regarding advertising and programming restrictions than what can and does appear on cable. Mostly this is restricted to political ads.

From that standpoint of broadcast being so highly regulated because the airwaves are public property do the stations who use that medium retain any rights to what they broadcast? If the FCC can claim jurisdiction and tell you what you cannot broadcast over "public airwaves" because is public property does the act of freely putting your shows on it mean you give up the right to control unaltered reuse or differing uses?

jarrett• 12 years ago

does the act of freely putting your shows on it mean you give up the right to control unaltered reuse or differing uses?

No, by law it does not. The copyright remains in effect. As discussed in the article, broadcasting grants certain rights to end users, but it certainly doesn't wipe out all the copyright holder's rights.

davorak2• 12 years ago

Aereo's they are just a middle man for the end user. The end user is using that antenna and for convince is sending it over the internet to wherever they are.

It is perfectly legal for an end user in this case to make a video recording and watch it later for personal use. Or even digitize it and watch it on their computer. In Aereo case that digital copy is also sent over the internet to another computer for personal viewing.

In this case no copyrights seem to be broken.

higherpurpose• 12 years ago

Why did the government have to intervene here? Just because the current administration is a tight friend of the RIAA? It seems to be doing it quite a lot lately. Imagine Monsanto suing some farmers, and then the government intervening in the trial to help Monsanto. There's just something wrong about that. The government should stick to its own cases and lawsuits, not intervene in 3rd party lawsuits.

DerpDerpDerp3• 12 years ago

I mean, they already induced a foreign state to violate that state's laws in order to harass a resident of that state, seize assets and information which they had no legal claim to, and then after a politically motivated prosecution fell apart, presented all the illegally obtained evidence to their industry friends so they could use it as the basis of a lawsuit against the same person.

Why would we expect any better here?

DerpDerpDerp3• 12 years ago

I'm curious what specifically people think is inaccurate about my description of the Kim Dotcom events.

kodablah2• 12 years ago

"They cringe at the thought of paying $130 a month for cable so Boorstin won’t miss Nationals baseball games. [...] With Aereo, baseball streaming site MLB.com, and maybe another app, they would gladly use the Internet for all their video news and entertainment."

Nope, if the Nationals aren't over the air in DC (likely not most of the time), and you live in DC, it will be blacked out. Aereo does not affect this in any way.

orky56• 12 years ago

Of course it does. Someone can subscribe to an antenna in a different market than DC, specifically to get a nationally televised game that is NOT blacked out in the local market. This is would be my biggest draw to Aereo.

lanaius• 12 years ago

Your credit card billing address has to match your service area.

Dylan168073• 12 years ago

Cable doesn't get blacked out?

brk2• 12 years ago

I've followed the Aereo stuff going on. Not heavily, but with more curiosity than not.

One question I've never seen fully addressed about the technology: are they literally claiming to capture a signal directly from the tiny antenna and encode/route that specific signal to a specific user with no other filtering/enhancement/etc. in between? Knowing how hard it is to get a good DTV signal, it seems unlikely that a bunch of tiny antennas buried in a data center are going to get reliably good signals. It would seem like what they are doing is capturing the signal from a better source, and then maintaining a batch of crappy antennas just to claim a 1:1 ratio of antennas to customers.

Does anyone know with reliable data how the technology really works?

chimeracoder2• 12 years ago

It would seem like what they are doing is capturing the signal from a better source, and then maintaining a batch of crappy antennas just to claim a 1:1 ratio of antennas to customers.

I'm not an expert, but to some extent, isn't that the same thing? Because of the way radio transmission works, any receiver is also a (re-)transmitter.

It might be that maintaining several small antennae actually improves the signal.

veemjeem• 12 years ago

Not just that, the antennae are located closer to the transmission source so you don't need your own antenna on some rooftop. Quality is higher since it just gets streamed to your location. It's kind of like having an antenna on the top of your own roof, and then using something like mythtv as the dvr to stream the content to your current location (which could be far away from home).

Suspect• 12 years ago

They lease space in the same building as the source.

toomuchtodo• 12 years ago

Interesting. I wonder if they have space in Willis/Sears Tower in Chicago.

Disclaimer: My parent company throws its signal via microwave off the antenna on that building.

davorak2• 12 years ago

When the company started it was called 1:1 ratio of antennas to customers. Which the signal from that one antenna only being delivered to one customer.

If they have changed since then it would be interesting to here about the decision process that lead to the change.

kevincennis2• 12 years ago

The antennas aren't "buried in a data center", they're housed in RF-transparent rooftop enclosures with line-of-sight (and reasonably close proximity) to the broadcast source.

Full disclosure: I work there.

joezydeco2• 12 years ago

So, looking at the TechCrunch video[1], are the antennae in the silver boxes seen at 2:30? I'm curious why we got to see the rest of the infrastructure but not these antennae other than their housings.

And if the box has 160 or so units per board, is all the 8VSB RF decode in there as well? The tour seems to imply that.

160 units capturing 18 mbit/sec (max) per 8VSB would be 2.88 gbit/sec going off to transcoding. But the module is using a 1 gigabit pipe? Or are all three ethernet cables attached to that module sending video?

[1]http://techcrunch.com/2014/04/16/aereo-shows-off-their-rooft...

brk2• 12 years ago

Thanks for the clarification. Some other tech article I read last year didn't really clarify it, and the pics made it look like the antennas were basically on some form of a PCI card, installed in racked servers.

So then you're saying that two customers using Aereo watching the same broadcast channel are getting uniquely encoded signals, and one could theoretically be connected to an antenna that had poor reception/signal (for whatever reason) and the other could be connected to an antenna with a better signal, and they'd see visibly different image streams?

arscan• 12 years ago

I was reading an article this morning that goes a little into their setup: http://www.cnet.com/news/inside-the-tech-that-tossed-aereo-t...

Yes, they claim to have a dedicated antenna for every user, a dedicated transcoder for every user, and a dedicated dvr box for every user.

I don't know if the courts are having external experts come in to audit their technology, but it seems like its safer for them to simply make it work the way they claim than to have gone through so much trouble to fake it.

filmgirlcw2• 12 years ago

Yes, it's been audited. The Super Bowl was an example of when the 1:1 was "proven" because they had to stop taking customer signups because they ran out of antennas. The same thing stopped them from briefly accepting more NYC customers.

carsonreinke2• 12 years ago

Really? I've never had a problem with a good DTV signal.

Spooky23• 12 years ago

Alot of stations went to lower power transmission with the DTV conversion, and some VHF channels are really difficult to pick up.

baddox• 12 years ago

It sounds like they're actually using each antenna, but the absurdity of this situation is that this could actually matter legally, considering the exact same service would be provided to the end user either way.

filmgirlcw2• 12 years ago

Assuming the court doesn't punt the decision (the way it did with Bilsky), this has the potential to be the most important broadcasting case since Betamax.

I've been following and covering Aereo since its NYC launch in Feb 2012 and regardless of who wins, the implications for the future of broadcast are huge.

sdegutis• 12 years ago

Who needs TV for entertainment anyway? That old Maine saying comes to mind: use it up, wear it out, make do, or do without.

selmnoo2• 12 years ago

If Aereo loses, there's a nice little thing they can do.

They should stop offering the streaming service, and start selling this thing (either recreate a similar competing device, or simply become a reseller!): http://www.hauppauge.com/site/products/data_broadway.html - a TV-signal-receiver/streamer-in-one device -- which can stream either over your local Wi-fi, or across the interwebs so you can watch remotely when you're out of the house.

And then people can use this thing for themselves and their friends and families... at no cost! Aereo should ship the thing to all current consumers immediately after losing, and lock everyone into a contract of 8$/month payments for however long it takes to recoup the full $150 cost of the device.

I'll be happy if people get this device over a service because it goes a nice distance to finally putting the power of cloud in the consumer's hand.

Splendor• 12 years ago

Aereo is for people who can't put up an antenna (or don't want to). This device requires an antenna.

selmnoo2• 12 years ago

You must have at least one friend or family member who can put up an antenna though, right? Give it to them, and get a streamcast going!

Sure it's five minutes of hassle setting the thing up, but once it's setup it's all free.

markelliot• 12 years ago

That'd be essentially the same as Slingbox (http://www.slingbox.com/).

drawkbox2• 12 years ago

You'd think broadcast and cable companies would embrace doing their own competitive product to extend their reach.

Instead they still to this day create a false demand by holding back American innovation, that only works if their aren't other alternatives.

If broadcast/cable want to live on they need to get to innovating and improving service, not fighting everything that challenges their kingdom.

I hope Aereo once again opens up competition on overpriced and monopolistic practices. Cable and broadcast had an immense lead when broadband internet innovated (with the help of taxpayer money and rights to provide the service they agreed to), then they stopped, got fat and turned to hogs.

Monopolies can sometimes move everyone forward for a time (At&T/telcos leading to software/C/C++, Microsoft spreading computing and internet, possibly Apple and the smart phone initially) but eventually, if the leaders aren't innovating and get too comfortable, they need to be jolted awake as they are no longer the leading innovators nor the future.

warfangle• 12 years ago

Broadcast and cable companies being competitive with innovation? Do you live in the same reality as the rest of us? ;)

Why innovate when you can legislate?

rayiner3• 12 years ago

The broadcasters aren't monopolies, not in an age where the broadcast medium itself (as distinct from the content) is increasingly irrelevant. Only 7% of households rely on over-the-air TV: https://www.ce.org/News/News-Releases/Press-Releases/2013-Pr....

The networks continue to matter because they offer products that people want to buy (movies and TV shows). These products are so compelling, that very few people have managed to offer compelling alternatives. E.g. people don't just want a doctor show, they want "House." They don't just want a sitcom, they want "How I Met Your Mother." It's not "innovation" to simply figure out new ways to take popular products and distribute them to consumers without paying the creators.

I applaud Netflix and Amazon for going down the path of real competition. Shows like "House of Cards" and "Alpha House" are rare alternatives to the media offered by established companies that actually receive good critical and audience reception.

drawkbox2• 12 years ago

Yes broadcast channels are on the decline but they owned and ran off the benefits of public airwaves which were/are very hard to get access to.

Before cable, Fox was successful in being the 4th big broadcast network but it was a huge battle (although it did shake things up when successful shows like the Simpsons were on).

Thankfully shortly after, we have cable and internet now, both further steps in limiting top down broadcast control. But with the support of tax money, broadcast space and lots of money the old broadcast stations were a combined monopoly on the airwaves.

You could argue the network stations have had to innovate a bit with cable and internet taking over and so they do have content that people love. The desire to use the public airwaves has been impossible for so long nobody really wants to take over the public airwaves much anymore so it is silly to fight against Aereo.

steven777400• 12 years ago

This was tried before with the "rent a DVD and player" streaming service (Zediva [1]). I would be shocked if Aereo won this case. The courts look strongly at the intention of the law; it's not the same "literally as-written" interpretation that technical folk tend to take of things.

From the Zediva case: "The courts ruled that it was irrelevant that the videos were streamed to one customer at a time in his private hotel room; the service still transmitted videos 'to the public,'"

[1] http://arstechnica.com/tech-policy/2011/08/judge-orders-shut...

xhrpost• 12 years ago

I remember reading about this. Even from the "intention of the law" perspective though, I still didn't get the argument of the MPAA. How is it that a private individual choosing a title to watch for themselves constitute as a "public" display of the work? They were renting their own DVD player and legit movie disc, something anyone can do physically if they so choose by going to a couple stores.

CamperBob2• 12 years ago

Because the MPAA rents its own US Senators, that's why.

danielweber• 12 years ago

Because the company is doing the performance to the public, even if they did a little dog-and-pony show to try and make it seem like it wasn't.

I think there are distinctions with the Aereo case, though. I could see Aereo winning despite the remote-watching-DVD case, and I was very confident in correctly predicting how the DVD case would turn out.

jrockway• 12 years ago

The MPAA's goal is to ensure that every cent that exists in the Universe is given to the motion picture industry. Why would they make an absurd argument about something? Because if it convinces someone, it moves them closer to their goal. If it fails to convince anyone, then they get no farther away from their goal.

This, incidentally, is why you lose a quarter point on the SAT when you get the answer wrong.

Dylan168073• 12 years ago

Why is that more applicable than the "cloud DVR" case?

rhino369• 12 years ago

One way to distinguish Aereo from Cablevision's cloud DVR is that Cablevision already had the rights to distribute the content.

Aereo has absolutely no right to distribute OTA broadcast signals.

The court can say that time-shifting content you are licensed to broadcast is allowed but time/place shifting unlicensed content is not.

I think the whole issue is sort of crazy. Aereo could probably license the content and distribute it cheaper without having to mess around with thousands and thousands of antennas.

thesimpsons1022• 12 years ago

you also have to consider that the old bastards on the supreme court aren't always fair and are fairly often on the side of big corporations. (Citizens United, Bush v. Gore, McCutcheon v. FEC). They don't have the best track record on cases like this, or cases in general.

EGreg2• 12 years ago

I doubt Aereo will win, but this will decide what "publicly available" means. It is a question of economics. Nothing physical is truly a "public good", there are always externalities to every transaction including consumption of content. And if something is free of cost, we can test the limits by repackaging it and undermining the price via externalities which is what's happening here.

cromulent• 12 years ago

Agreed. Outsourcing your time-and-place shifting put liabilities on the service provider. The TV-Kaista case in Finland has proceeded to criminal charges.

http://www.helsinkitimes.fi/index.php/finland/finland-news/d...

chimeracoder2• 12 years ago

This was tried before with the "rent a DVD and player" streaming service (Zediva).

A huge difference between Zediva and Aereo is that Aereo only rebroadcasts network television. All the content that Aereo rebroadcasts is already required by law to be publicly accessible and unencrypted(!)[0]. This is why they only serve over-the-air content - the same law does not apply to DVDs rented, or even to cable television.

Also, to my knowledge, Aereo does not deduplicate content stored, whereas Zediva essentially does. You and I know that there's no difference between "my" digital copy and "your" digital copy, but Aereo does store a separate copy per-user and only distributes each copy to the correct user.

The reason that Aereo separates those copies is because we already have case law that establishes my right to record an over-the-air broadcast and replay it for myself[1]. Aereo maintains that it is acting on behalf of the customers to exercise the customers' right to create personal recordings. If they de-duplicated the data (as Zediva did), they'd certainly save a lot on storage and hardware costs, but they'd no longer be protected by this legal precedent.

Aereo has a very well-funded legal team that is certainly aware of Zediva and other landmark legal precedents[2] - they specifically crafted their entire business around the Cablevision ruling and other case law.

[0] In 2012, the FCC decided to allow cable operators to encrypt these signals, but even this only applies to the retransmission: "The FCC wants to ensure that consumers can still access basic cable services without specifically renting a box from the cable companies. And so the FCC is requiring that the cable operators make the unencrypted TV signals available to third-party device makers and Internet TV service providers." (http://www.cnet.com/news/fcc-allows-cable-operators-to-encry...)

[1] https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Unive....

[2] Aereo's raised $100MM in 4 rounds. Three of those rounds included IAC, which is run by Barry Diller, who has plenty of relevant industry experience, to say the least: https://en.wikipedia.org/wiki/Barry_Diller

shasta• 12 years ago

If they de-duplicated the data (as Zediva did), they'd certainly save a lot on storage and hardware costs, but they'd no longer be protected by this legal precedent.

This should be a clue to the supremes that this is bad law.

rev_null• 12 years ago

What constitutes deduplication?

If they use a filesystem where blocks are content addressable, but files referring to those blocks are unique, is that illegal?

guelo• 12 years ago

If the issue were so obvious it would not have made it through multiple courts up to the supreme court.

brownbat2• 12 years ago

It was also tried before finding the opposite result, when cable companies repackaged broadcast signals and transported them for a fee, in arguably much closer precedents:

Teleprompter Corp. v. CBS, 415 U.S. 394 (1974) [1]

Fortnightly Corp. v. United Artists Television, Inc. - 392 U.S. 390 (1968) [2]

Unlike the Zediva case, these were actually heard at the Supreme Court (but they are also old, decided before some important cable bills and copyright act modifications).

Eh, seemingly conflicting precedents are, of course, why we are at this stage.

[1] http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&...

[2] http://supreme.justia.com/cases/federal/us/392/390/

EDIT: links.

brownbat2• 12 years ago

UPDATE: I just read ABC's final reply brief [1], where they argue that Fortnightly and Teleprompter don't apply because of 17 USC 111(c), drafted by Congress just after those cases.

17 USC 111 says cable companies can retransmit, but only for a fee.

I see three reasonable interpretations of this result:

1. Aereo can retransmit, just has to pay licensing fees. 2. 17 USC 111 does not apply at all to Aereo, because Aereo is not a cable company, therefore the old precedents stand, and Aereo can retransmit without any fees. 3. Congressional action set the precise requirements for anyone to retransmit (ie, you must be a cable operator), and thus Aereo is flat out prohibited from rebroadcasting at all.

All of these seem prima facie reasonable, there's lots of room for judicial interpretation. I think there's a strong case to be made for 2, since Congress only took two years to respond to rulings before. Congress has demonstrated competence here, it can patch its out of date laws without requiring the Supreme Court to start radically reinterpreting "cable operator" to mean "any internet company." The Supreme Court therefore should just interpret as strictly as possible, doing as little work for policymakers as necessary. That means 17 USC 111 doesn't apply to Aereo at all, and we're left with valid Supreme Court precedents to control the case. If Congress doesn't like it, they can explicitly clarify 17 USC 111 at any time.

[1] http://www.americanbar.org/content/dam/aba/publications/supr...

dalek2point3• 12 years ago

Katie Couric did this great interview of Chet Kanojia on Yahoo that is definitely worth checking out. http://news.yahoo.com/video/aereo-broadcast-tv-worst-nightma...

In it, the Aereo CEO admits to being "anxious" because the $100 million on the company is essentially down the drain depending on what the Supreme Court decides. He says, this is mainly due to the 110-odd people who work at the firm. Fair-nuff -- seems like a reasonable sort-a guy.

Supreme Court to hear arguments on Aereo this week

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