Supreme court: Aereo is violating copyright law [pdf]

http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf

by acjohnson55 • 12 years ago

301 386 12 years ago

rglover• 12 years ago

Not surprised. The service works by rebroadcasting over the air signals and then charging for them, right?

unreal37• 12 years ago

Not really. They rented you exclusively an antenna at their location, and you can use it to watch over the air TV. There was no rebroadcasting technically, which is how they hoped to get around the law.

warfangle• 12 years ago

That's the only difference between Aereo and the original CATV companies. Original CATV was one giant antenna on a hill piping the broadcast to homes that couldn't get the signal; this is thousands of antennas intelligently provisioned on a hill piping the broadcast and providing DVR functionality to homes that don't necessarily want to deal with using the crappy tv antenna -> computer hardware available.

djb_hackernews4• 12 years ago

I've not used Aero and haven't heard their argument but I bet their business model is they rent antennas to customers. I'd be curious to know where that argument failed because surely I could create a business that rented antennas to customers and installed them on houses. Why does it matter the location of the antenna?

Either way this is bad for the consumer, bad for technology, and bad for innovation.

mikeash8• 12 years ago

I imagine the argument fails because it's obvious to anyone who looks at the company's offerings for two seconds that the "rent antennas" thing is just an excuse, and that their actual business model is that they charge for streaming TV.

HCIdivision17• 12 years ago

As I understand it, one of their goals was to not be considered a broadcaster. Rather, it's more akin to a wire in that it's one-to-one, not one-to-many.

I am eager to hear some expert commentary on the ruling on what the side effects will be.

dynofuz• 12 years ago

This doesnt make sense. You are paying for renting the antenna. You're not paying for the content.

emehrkay• 12 years ago

How exactly does Aereo work? You rent an antenna from them, they record the show for you, and you can play it back at a later time?

mason55• 12 years ago

You can view OTA content live and record what you're watching just like a DVR. They don't proactively record for you.

Guvante• 12 years ago

They work like a DVR, you can set a show to record and it will save a copy just for you using your antenna.

pbreit5• 12 years ago

That's one version. The other is that you simply watch the show in near-real-time, just as you would if the camera were sitting in your window.

IANAL, but felt like the DVR functionality really clouded the case and possibly skewed it away from Aereo. Harder to claim you are merely an antenna when you are recording, too.

danielweber11• 12 years ago

(It sucks you got downvoted for asking an earnest question.)

Shivetya• 12 years ago

Under the changes that Congress specifically made to the Copyright act I do believe the court ruled correctly. Congress moved in 1976 to protect broadcasters from Cable companies doing nearly what Aereo is doing, capturing and sending by another means the broadcast of a TV station.

Congress at the time did not like how the courts were ruling in favor of the then fledgling CATV services. Courts ruled that capturing and sending the shows to cable viewers was not a violation as were not acting as "performers". Congress changed that they were, effectively stopping cable from providing local and regional channels. Well Congress showed who was truly doing this by adding in all sorts of new compulsory fees for carrying local channels. So CATV can and in some cases has to carry local content and pay for it.

TL;DR

Congress changes to Copyright in 1976 at the behest of broadcasters versus CableTV is the basis for the ruling. The original broadcaster owns all rights unless otherwise assigned.

skottk7• 12 years ago

That's the problem!

The opinion compares Aereo's use of tiny antennas to cable companies' use of one big one. They argue that since Congress passed a law back in the '70s to define the cable companies' practices as rebroadcast, that law should be read as also defining what Aereo does as rebroadcast.

mikeash8• 12 years ago

If that's true, then why is their home page filled with talk about "watch live TV" and not a single word about renting an antenna?

When I look at their offerings, I can immediately see that they're selling a streaming TV service and it just happens to be implemented by receiving radio-frequency broadcasts. Supreme Court justices aren't idiots, and they can probably see that too.

muyuu3• 12 years ago

Down. Any mirrors?

theg2• 12 years ago

http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf this is still working for me.

muyuu3• 12 years ago

This is what I see (connecting from the UK):

500 Internal Server Error

The server encountered an unexpected condition which prevented it from fulfilling the request.

ComputerGuru• 12 years ago

Here you go: http://cl.ly/1h0P1W2h181W

ruytlm• 12 years ago

There's also a Scribd mirror up: http://www.scribd.com/doc/231280851/ABC-v-Aereo-Decision

muyuu3• 12 years ago

Cheers.

electronous• 12 years ago

This is precisely why old people shouldn't be anywhere near tech.

Loughla2• 12 years ago

That's a beautiful attitude.

smackfu2• 12 years ago

They wrote 18 pages explaining their reasoning complete with citations, and that's your rebuttal?

snowwrestler7• 12 years ago

Barry Diller, a major backer of Aereo, is 72.

pgrote• 12 years ago

Justices Breyer, Roberts, Kennedy, Ginsburg, Sotomayor and Kagan were the majority.

It isn't over since the case now goes back to the lower court, but Aereo can no longer argue they are the same as a person putting an antenna on their roof.

Grue35• 12 years ago

So, all the "liberal" judges? Sucks that the ones who usually defend human rights are also the same people who stifle innovation.

sheetjs• 12 years ago

Describing Roberts as liberal is a great stretch

jonnathanson2• 12 years ago

Well, the problem is that Aereo probably could not have prevailed at SCOTUS, because SCOTUS looks to precedent. In this case, their interpretation of the precedent itself (Copyright Act of 1976) was accurate, even if that precedent is out of date in our eyes. If you want SCOTUS justices to innovate, you need to challenge the precedents at their fundamental level, or else point to other precedents that should invalidate or challenge them.

Bear in mind that the function of the Supreme Court isn't to propose new laws (legislate); it's to rule on existing laws. By its own mandate, the Supreme Court does not serve an innovative function in government. It serves an examination and arbitration function. If we want to change anything here, we'll have to start in the other branches of government, or else bring a case that sufficiently challenges the Copyright Act.

danielweber11• 12 years ago

Everything following this comment is a horrible derail. And would be expected from the plain text of the comment.

dminor2• 12 years ago

All the judges were against it. The three who dissented just didn't agree on the reason.

drzaiusapelord2• 12 years ago

Its amazing that the left and the right can't agree on anything, not even it being illegal to lie on gun applications, but once IP is tossed in the game they all fall on some pretty strong protectionist postions.

I'm not making some big statement here, but it just goes to show that guys like Lawrence Lessig and the EFF keep losing because they have so few allies in government and have the most powerful enemies, the various deep-pocketing IP abusers like tech firms or Disney.

What now? Back to our DRM-laden lives with no silver lining I guess. Shame that the profit on mass entertainment trumps all rights. I wonder if my Slingbox is illegal now. Probably not, supposedly this decision is narrowly written, which is a welcome change from the big sweeping conservative-led majority decisions of late.

PaulHoule2• 12 years ago

Intellectual property law is the pride and joy of our legal system.

Really.

Patents, Copyright and Trademarks are all American inventions that have spread everywhere in the world. Many Americans think it goes too far, but in the fraternity of lawyers and judges, IP rules.

danielweber11• 12 years ago

People who regularly watch the court know that judges falling into "Left" and "Right" camps are the exception, not the rule. There are typically splits were some of the "Left" judges agree for reason X and some disagree for reason Y, and/or some "Right" judges agree for reason Z and disagree for reason W.

And that's a good thing. This isn't a sports game where I should root for "my team." The judges shouldn't start from the end position they want and work towards that.

harryh15• 12 years ago

Actually "they all" didn't agree. The right flank of the court (Scalia, Thomas & Alito) dissented.

hyperpape• 12 years ago

I think you are confusing "left and right" with "mainstream Democratic and Republican politicians". These categories don't really overlap all that much.

Alupis• 12 years ago

Can someone explain the gist of what's going on to an outside observer not familiar with Aereo?

jcampbell1• 12 years ago

Aereo is a company that setup 1000s of DVR's with 1000s of antennas on a New York City rooftop. They lease access to these DVRs for roughtly $5/month and the DVRs stream to your computer.

In the US, broadcast channels are free over the air. However, there is a law that says if cable companies want to retransmit the broadcasts, the networks can charge the cable companies.

Is Aereo "retransmitting" the broadcast, or just renting personal antennas? That is what the Supreme Court was deciding.

cheez0r2• 12 years ago

The Supreme Court is wrong- the reason cable companies are treated as a 'public' performance of a work is that their distribution medium is shared- any subscriber can tune into that broadcasting of that work over a shared common carrier where one copy of the work is transmitted and many subscribers can view it. Aereo is different in that it only transmits the signal captured to a single subscriber at a time, removing the 'public' nature of the performance and hence invalidating their argument. How absurd.

JoeAltmaier• 12 years ago

Is that really a necessary part of 'public performance' according to law? You can show movies for pay if only one person is in the audience? I'm not sure that argument works.

amalcon• 12 years ago

The Supreme Court is not able to be wrong on a matter of U.S. law. It gets to decide what that law means, not you.

It's not the decision I'd hoped for, nor the one I'd make, but it's nonsense to claim that it's "wrong". All we can do about it now is to get the law changed.

DrJokepu• 12 years ago

There are Supreme Court decisions that are generally regarded as "wrong" by posterity. Dred Scott v. Sandford comes to mind.

JoshTriplett• 12 years ago

The Supreme Court is not able to be wrong on a matter of U.S. law. It gets to decide what that law means, not you.

The Supreme Court decides interpretations of law, but the law itself (as written or as interpreted) is quite capable of being wrong. Law does not determine morality.

logfromblammo2• 12 years ago

They certainly can be wrong. They just can't be overruled by anyone except future members of the same court. In this sense, they are not always right, but they are always correct. If they were always right, there would never be dissenting opinions from 8-1, 7-2, 6-3, or 5-4 splits.

We just pretend that they, like the Catholics pretend for their pope, are infallible. At some point, you have to let the matter be settled in a final and lasting way, otherwise nothing can get done. It is sometimes better for a matter to be settled in an unsatisfying way than it is to have any uncertainty remaining.

A ruling from the ultimate arbiter is not an ethical mandate. While one can hope that their decision is compatible with and motivated by moral values and ethical principles, it could also be the result of political expedience or a bit of bad pork in yesterday's supper.

It isn't right or wrong. It is simply what has been decided by our most prestigious professional arbiters.

If you don't like what they decided, you can accept it and move on, or start petitioning a legislator in an effort to make their decision obsolete.

...Or, there is something else you could do. It rhymes with "abhorrent". As long as we're not concerning ourselves with "right" or "wrong" here, we could simply accept the precept that if the courts fail to deliver acceptable results to the litigants, they might seek them out by other means. It really depends on how mad Aereo is about the fact that a private business interest was able to use government power to destroy a potentially disruptive competitor.

I would guess that the vast majority of Aereo's business expenses were a direct result of attempting to comply with the law, and its apparent loopholes. The service could be replicated at lower cost by one antenna per broadcast station, local resources to convert the signal into compressed video files, and redundant servers in multiple safer jurisdictions. The successor could simply take subscriber fees to ensure that a particular station is recorded during a particular interval, and the resulting video is seeded for a minimum period of time. Now that they know that their entire business model is ruled illegal, there is no particular reason to comply with any part of the law... other than their respect for the law.

Aereo may choose not to do this, but they have proven that there is a market for it, and nothing excites the black market more than a proven demand for an illegal good or service. What's more, the black market equipment will be virtually indistinguishable from legal gear, so long as the operators take even the most rudimentary steps to cover their tracks.

The people who used Aereo aren't just going to go back to cable. They are simply going to move from a provider that could be sued out of existence to one that is effectively invisible, or withhold their money and wait for something else worth spending it on. I understand that the cable companies had little choice but to attack Aereo, but they have to understand that they created the market conditions for Aereo to appear. As long as they exist, they will be playing whack-a-mole with every new service that tries to provide television services better than cable.

untog6• 12 years ago

Aereo's setup is absurd. Placing hundreds if not thousands of identical antennas on a rooftop, capturing identical signals and sending them, individually, to users.

That's expensive and inefficient. The only reason they did it was to exploit a potential loophole in the current law - and now the Supreme Court has effectively closed that loophole.

pbreit5• 12 years ago

That's odd reasoning. It sounds like you are saying that any conformance to the law is somehow exploiting a loophole.

djb_hackernews4• 12 years ago

It's called scaling horizontally, and pretty much every company that cares about service availability does it. Is that really your argument?

ProAm• 12 years ago

Don't their antenna's cost 10 cents or something really cheap like that?

cheez0r2• 12 years ago

Yes- they are renting me an antenna in the locale the performance is being broadcast, and providing connectivity to that antenna. That is not a loophole- that is the letter of the law- that an individual can receive a broadcast performance of a work, but that it cannot be duplicated. It meets the letter of the law- unlike a system that received the broadcast signal, captured it, and provided the same copy to many users, which would violate the 'public performance' section of the law. Renting me an antenna makes it my individual private antenna, removing the public aspect of the performance, and making it perfectly legal.

rtpg2• 12 years ago

the definition of "public" in public performance is not about who the broadcast goes out to, but about the relationship between the broadcaster and the broadcastee.

If I invite 100 people to my house to see a movie, it's not a public performance (supposedly) because they are coming as members of my social circle. If I instead showed at a movie theatre and charged for it, and the same 100 people showed up, then it would be a public performance because those 100 people came as members of the public.

Here Aereo broadcast to customers as members of the public. Because Aereo owned the equipment, they were the ones doing the broadcasting (in the oral arguments one of the judges commented on how if instead they sold the equipment and just provided hosting, the position would be much more defensible).

But, like what many others have said, the intent of the law is really what matters, and the definitions of public performance are much more about intent than about technical implementations.

tanzam75• 12 years ago

The Supreme Court is wrong- the reason cable companies are treated as a 'public' performance of a work is that their distribution medium is shared.

No.

What makes a cable company "public performance" is that the company is selling services to the general public in an arms-length transaction. The shared nature of the transmission medium is irrelevant.

They could send streams directly to individual subscribers using IPTV, as AT&T does with U-verse, and it would still be a public performance.

That is why Aereo needed the individual antennas to try to take advantage of a perceived loophole. Aereo with one big antenna would not have made it to the Supreme Court, because it would have been so obviously in the wrong.

ubernostrum• 12 years ago

The Supreme Court is wrong

The Supreme Court is unfortunately trapped. As the opinion notes, the Court once took a position very like Aereo's, way back in 1968, on the subject of shared "community" antennas (Fortnightly v. United Artists).

The Court's position today is that Congress more or less immediately amended the Copyright Act in response to that decision, and now the law as written no longer supports the Court's former position (and thus no longer supports Aereo's position).

icedchai2• 12 years ago

what's absurd is almost 100 million was invested in Aereo.

johnpmayer2• 12 years ago

Seems like, because Aereo isn't just a hardware renter but also an integrated SaaS provider, they were treated as such.

The court opinion talks in terms of user interaction with menus on the site to select shows. We're kidding ourselves if this works anything like "hardware rental". If it were, it would feel more like AWS.

skottk7• 12 years ago

This.

Aereo wanted to define the activity by drawing a box around the tiny antenna and the user.

The Supremes draw the box around Aereo and their customer base.

dminor2• 12 years ago

So if Aereo were just in the antenna rental business, and some other entity were in the cloud DVR business, and consumers paired them together it would be just fine?

Edit: having read the decision, it seems there were companies that provided antenna services back in the 60's, and congress amended the copyright act to forbid them. The ability for Aereo subscribers to choose which material is transmitted is key to Aereo's argument.

the_ancient• 12 years ago

I see so if you want to be "hardware rental" you have have a bad UI but if you have a good ui you are then SaaS..

WTF

johnpmayer2• 12 years ago

It's not so much as quality of the UI but rather what the service actually is. I can black-box Aereo and it looks pretty much like a rebroadcaster. Aereo isn't renting me an antennae, not in the way AWS rents me a server.

ansible• 12 years ago

Maybe they should be in the hardware selling business instead.

Redesign their system to have discrete units. Aereo users would then buy the boxes (similar to that Hauppauge one linked elsewhere in this discussion) and pay a monthly service fee for power and bandwidth. If they are done with Aereo, they can have the box shipped to them for a small fee, or sell it back to Aereo.

The user will have complete and direct control of the TV box. Then there should be no problem.

Hardware costs will be higher though, and maybe the service ends up costing more overall. It would still be worth it for some people, like my friend who (while he likes sports in general) really just wants to see all of his favorite sports team's games from another city. I know of other people with similar use cases.

motbob• 12 years ago

The decision is limited to the question of whether Aereo violated the networks' "exclusive right" to "perform" their programs "publicly."

The dissent (Scalia, Alido, and Thomas) believe that Aereo did not "perform" at all. They believe that when an Aereo subscriber logs in and clicks the play button, that the subscriber, not Aereo, is doing that performing.

EDIT: Please note that the dissent would not have necessarily ruled that Aereo's service was legal. The dissent merely believes that Aereo's service complies with this one specific part of the Copyright Act. From the dissent: "[Our] conclusion does not necessarily mean that Aereo's service complies with the Copyright Act. Quite the contrary. The Networks' complaint alleges that Aereo is directly and secondarily liable for infringing their public performance rights and also their reproduction rights."

So this decision is designed to be as tight as possible. The Court is trying to limit the effects of its decision by constraining it to this one claim by the networks. From the language of the dissent, I have a hunch that even if this one aspect of the case had been decided in Aereo's favor, that some other aspect would have resulted in its service being declared illegal.

Scalia: "I share the Court's evident feeling that what Aereo is doing (or enabling to be done) to the Networks' copyrighted programming ought not to be allowed."

acjohnson552• 12 years ago

I'm reading the opinion now, and I would not have guessed that those particular justices would have made the ruling they did. Does anybody have insight into how this decision fits with the ideological views of the justices?

acheron2• 12 years ago

It's almost as if the justices are actual people with complex sets of knowledge, opinions, and interpretations rather than just your stereotypes!

rayiner5• 12 years ago

The conservative Justices generally favor looking at the plain text of the statute, while the liberal Justices are more willing to look at the broader implications and view a situation in functional terms. So it's unsurprising that the liberal justices, and Chief Justice Roberts who is less textualist than the other conservatives, were willing to look past the technicality Aereo was relying on to see that it was functionally equivalent to any other television streaming service.

executor142• 12 years ago

Scalia's dissent likens Aereo to a "photocopier or VCR." He says the court's decision "will sow confusion for years to come."

More from Scalia's dissent: "The Court vows that its ruling will not affect cloud-storage providers and cable-television systems, but it cannot deliver on that promise given the imprecision of its result-driven rule."

pdq• 12 years ago

Scalia, Thomas, and Alito wrote their dissenting opinion, starting on page 23.

Apoorv023• 12 years ago

Aereo is not violating anything but they should have prepared for something like this. Absurdity is common when you are trying to provide similar service to the consumer in a better way without creating monopoly.

smeyer2• 12 years ago

Aereo is not violating anything but they should have been prepared for something like this.

In what other sense could they have been prepared? They fully expected to end up in the courts, likely through the supreme court, and planned appropriately. They lost the case, but it doesn't seem to be for lack of preparation.

Apoorv023• 12 years ago

I was proposing for them to be prepared before it happened not for the trial.

cowardlydragon• 12 years ago

No way, a decision from the Supremes that favors entrenched corporate interests?

At least this time it isn't such a direct attack on the "common people"

snowwrestler7• 12 years ago

I never liked the Rube-Goldbergian design of the Aereo system. It was clearly more complex than necessary, for the sole reason to try to find and fit through a loophole in the law.

To support that would set bad precedent, I think--both legally and technologically. Even if you hate copyright, I'd argue that this ruling is probably better in the long run because it clarifies the situation and the fight.

From that perspective I think the decision is essentially correct, although I'm sure it will be unpopular here.

However, I did read the syllabus, and there is some language in there referencing viewer participation in a public performance, that seems worrisome. But I'm not a lawyer, so I will be interested to see informed discussion of whether the specific legislation and precedents were applied correctly, and what implications were created by this decision.

bediger40005• 12 years ago

One man's loophole in the law is another man's strict conformance to the law. It looks to me like Aereo read the text of the law very carefully, and did what they could to provide for a consumer demand.

The only problem is that Aereo didn't get enough money fast enough to "create an ecosystem" or whatever the phrase is when you mean "monied interest not afraid to lobby for their cause".

sschueller• 12 years ago

Does that mean good bye Aereo? Didn't they say they would shut down their service if they loose?

veritas202• 12 years ago

Yes, they've stated that they have no Plan B. I would have to disagree with them though. There are always options. The ruling essentially invalidated the live stream portion of their service. I believe that there is still a huge market for cloud DVR. I rarely watch live TV these days, and if I do it's because there was no other option.

evandena2• 12 years ago

So how does this ruling not affect the cloud storage providers?

executor142• 12 years ago

..."And we have not considered whether the public performance right is in- fringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content."

skottk7• 12 years ago

Because it's not about "the cloud" in general. It's about specifically the rebroadcast of television radio signals, concerning which there's a substantial body of law created to govern the activities of cable TV providers.

In other words, the SC just defined Aereo as a cable company, when they wanted to be a cloud services company.

evandena2• 12 years ago

Thanks

cm-t• 12 years ago

HN/reddit ddos'ed ?

smackfu2• 12 years ago

Really? I've never had problems getting to the SCOTUS opinion PDFs, and that's pretty impressive since the traffic must be intense right after a ruling is released. And it would be difficult to use a CDN because the decisions CANNOT be released early.

mikeash8• 12 years ago

I imagine this is a minority opinion here, but I don't see a problem with this decision.

Tech people like to treat laws as rigid rules that would be written in a formally specified language if only legislators were capable of such a thing. But they're not, and by design.

It doesn't make sense for a law to be written such that receiving on one antenna and sending the result to your users is illegal, but receiving one an antenna farm all located in the same spot and sending the result to your users is legal.

Do we really want to live in a country where the obvious solution is illegal but an insane workaround is legal? I don't want a precedent set where it becomes standard for laws to be bypassed with expensive and technically pointless workarounds. If we want to allow companies to receive TV broadcasts and stream them over the internet, we should do so. If we don't, we shouldn't. A situation where they're only allowed to do it if they have 10,000 separate and unnecessary antennas is absurd.

Personally, I think it's ridiculous that a TV station can broadcast their signal free of charge to anyone capable of receiving it, but if a company wants to receive it and then pass it along to somebody, they have to pay a fee. But the problem is with the ridiculous law, not with a completely reasonable interpretation of it.

skottk7• 12 years ago

Your points about the way law works are exactly where technical people often run into trouble when they reason about the law.

Given that the TV broadcasters are paying for the right to broadcast (often gigantic amounts of money), I don't see a problem with preventing an Aereo from free-riding on that privilege. YMMV.

mikeash8• 12 years ago

Why do they pay for the right to broadcast, though? Because they want people to watch, right? Isn't receiving their signal and transmitting it to more people who can watch it more easily and with higher quality doing them a service?

If you look back before cable TV, broadcasters transmitted their signal and the only people who could watch it were those with suitable equipment within range. Broadcasters competed to get as many people as possible to watch. Each new eyeball (preferably in pairs) meant additional revenue for them with no additional cost.

Then comes cable TV. In addition to access to new channels, it also provides the benefit of being able to watch regular broadcast channels even when you couldn't receive them over the air. That means more viewers for the broadcast stations, and thus more revenue. Why, then, should broadcast stations get paid for distributing their signal to more people, which is what they want anyway?

It's clear to me that this is what the law says, and since the Supreme Court's job is to interpret the law, it also seems clear enough to me that they made the right decision here. But it doesn't seem like a very good law.

themgt• 12 years ago

The really interesting question is the implications for future precedent/innovations. The ruling says "But this difference [Aero's technological setup] means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into “a copy shop that provides its patrons with a library card.” In other cases involving different kinds of service or technology providers, a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act. But the many similarities between Aereo and cable companies, considered in light of Congress’ basic purposes in amending the Copyright Act, convince us that this difference is not critical here."

What this seems to leave open is the question of whether a company that was e.g. a generic cloud service with various features and functions, among them the ability to rent a mini-antenna and stream recorded data from it to your computer, would still be infringing. It suggests the infringement is largely due to the way Aereo positioned and marketed itself to customers - the common sense reality of the service overrode the technological loophole they attempted to exploit.

skottk7• 12 years ago

The user involvement bit is addressing the Cartoon Network case regarding Cablevision's remote DVR architecture that Aereo is based on.

Cablevision designed a remote DVR system that made transient, user-specific copies based on the user's pressing a button on their set-top-box remote. In their defense against Cartoon Network et al., Cablevision made the "volitional conduct" defense that Scalia talks about in the dissent here- essentially, that the user who pressed the button was responsible for making the copy. Cablevision won at trial and on appeal in the Second Circuit.

The biggest difference between the Cablevision case and the Aereo case is that Cablevision has and pays for the broadcast licenses that Aereo was trying to avoid having to obtain.

rayiner5• 12 years ago

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.

ganeumann• 12 years ago

"innovative" !== "technologically innovative"

bediger40005• 12 years ago

"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".

The Supreme Court ruled wrong in this case.

mlieberman85• 12 years ago

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.

zaidf• 12 years ago

What's your definition of innovation?

jasonwocky• 12 years ago

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.

sp332• 12 years ago

That's crazy. The whole point of copyright law is that you can get the same content in different ways, some of which are legal [edit:authorized] and some are not. Now the Supreme Court says that all ways of getting content are the same?

icebraining12• 12 years ago

They're not the same, but they are almost all covered under copyright, yes.

mp99e99• 12 years ago

very sad day for consumers and tech, lots of possible business models broken.

Goronmon2• 12 years ago

very sad day for consumers and tech, lots of possible business models broken.

I'm not seeing it. The decision seems to specifically covering only the business model used by Aereo. That is, charging users for a service that retransmits television content without a license to do so.

What other business models are you talking about?

selmnoo• 12 years ago

I've mentioned this before on HN, I'll say it again: Aereo should now do a pivot, becoming a hardware reseller of TV-signal-receiver/streamer devices like this one: http://www.hauppauge.com/site/products/data_broadway.html - it can stream either over your local Wi-fi, or across the interwebs so you can watch remotely when you're out of the house. Broadband speeds are a bit slow, but they're getting there (slowly) - until then, rely on your friend who has Google fiber or something :). Basically you have Aereo service without the service fees (except the initial hardware cost and internet service cost). I'm especially in favour of this because it's putting back the power in the hands of the end customer -- finally, they own the device, they're not relying on the cloud, they're not facilitating another rentier operation.

brucehart• 12 years ago

Slingbox seems to have a strong position in this market. It's tougher to stream video from a person's home than from a data center. Most homes with broadband have limited upload speed that makes it difficult to stream good quality video. I'm hoping newer compression algorithms such as HEVC will make it possible to get decent quality even on connections with less than 1 Mbps upload bandwidth.

avmich• 12 years ago

You probably don't need to sell the equipment with the idea that it will be installed in homes? Why not to keep person's equipment in data centers?

gambiting• 12 years ago

Sony was selling exactly this thing....9 years ago. They made LocationFree base stations which would stream your TV signal to your PSP anywhere in the world over the internet. That was incredibly impressive for 2005.

http://en.wikipedia.org/wiki/LocationFree_Player

bengali3• 12 years ago

Does it even need to stream from the house (versus uploaded earlier than requested on my device) ?

Am I as a consumer allowed to store my DVR material on hosted storage then have that stream to me later?

Then can my cloud provider cache and de-dupe content on their environment so that they don't need to have 4 copies of the same episode in cache?

I wonder, can a new company sell set top antennas that perform better than others, because they aggregate signals and can enhance the quality of your dvr material?

TYPE_FASTER• 12 years ago

From the link: "Any program which they can watch on their TV set, such as live prime time TV programs and sports events"

There are two reasons I paid for Aereo:

1. I cannot receive a digital TV signal over the air where I live. 2. I wanted just local channels, but did not want to pay another $30-50/mo for other channels that I'm not going to watch.

The Hauppauge product solves neither of these problems.

Relocating the receiver to a metropolitan area greatly increases the number of people who can watch the content, and ads, that are being broadcast.

As much as I do not agree with Justices Roberts or Scalia, I agree with their dissent in this case. This decision makes no sense from a legal (or technological) perspective.

toomuchtodo5• 12 years ago

Aereo should pivot to be a colocation company specifically for this equipment. Sell the device to the end user for $100, charge $8-12/month for "colocation".

What next? Illegal for a user to colocate their own antenna equipment?

Loughla2• 12 years ago

That feels immoral when I say it out loud. Do we not worry about intent and spirit of the law anymore?

toomuchtodo5• 12 years ago

SiliconDust has been selling this sort of product for years: http://www.silicondust.com/products/hdhomerun/hdhomerun/

jedberg2• 12 years ago

I wonder if Aereo would be legal if they dropped the DVR portion of the service. It seems like that is the issue here.

If it's really just me renting an antenna it seems like that is still legal.

skottk7• 12 years ago

Nope - it's the unlicensed transmission that this decision covers. The opinion actually states that a cable company (with its licenses) would be able to offer the DVR portion of the service. The DVR thing was covered in the Second Circuit's Cartoon Network/Cablevision decision. It's what gave Aereo the idea to try the many-antennas approach. The biggest difference is that Cablevision has broadcast licenses.

jedberg2• 12 years ago

Got it, thanks for the clarification.

pontifier• 12 years ago

I'm constantly amazed by the way the supreme court carves a razor sharp line through the issues. They always seem to examine these complex issues with the clarity they deserve. That's their job, but these are some fantastic and intelligent individuals, and are the only people in government, especially the justice system, that I have complete confidence in.

I truly wish I could have more confidence in other parts of government, especially lower court judges, and the police.

RockyMcNuts• 12 years ago

Al Gore probably doesn't share your confidence.

allworknoplay• 12 years ago

You're so right in theory, except that they're almost always split along idealogical lines -- individual justices strongly adhere to a single political ideology, AND justices with similar ideologies almost always stick together.

That implies, sadly, that instead of clear first-principles rulings they're really just interpreting the law to suit their beliefs.

The split has been studied endlessly and it's real; they rule politically rather than rationally. Just one example of coverage: http://www.theatlantic.com/politics/archive/2012/06/the-incr...

acheron2• 12 years ago

that they're almost always split along idealogical lines

Except not. Stereotypical 5-4 decisions are down, unanimous decisions are up. Overall the justices are agreeing with each other more than ever. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014...

mckoss• 12 years ago

The dissenting opinion is based on a theory that Aero did not make a choice in what they were rebroadcasting. I disagree as they carefully selected the geographic region for their antennas based on their belief in the market demand for (copyrighted) shows in that region. They also carefully adjusted their equipment to be tied to the specific frequencies of broadcasters. They knew and promoted precisely what content viewers would watch.

taude• 12 years ago

So in my area, I can't get over-the-air TV. I even put an antenna on my roof, and it doesn't work. What's the governments responsibility for providing public band tv stuff to me? Seems like I'm forced to buy into the cable cabal?

euroclydon2• 12 years ago

I haven't given Aereo much thought, but it seems like, if I could rent a VPS in Miami, I could watch Miami Dolphins games online for the cost of Aereo plus the VPS. That would be like $30/mo for 5 months. $150 total -- much cheaper than the NFL Sunday Ticket.

That alone is a big loophole!!!

bmelton2• 12 years ago

I'm pretty sure they at least attempt to limit your antenna to one in a nearby area to you, though I'm not a customer, so I can't say how effectively they disallow it.

That said, I'm apparently in a suburb of Baltimore, and when I visit the aerio site, I only see access to Baltimore services... suggesting that I'd have a hard, if not impossible time getting an antenna in Miami.

euroclydon2• 12 years ago

That's why I mentioned the VPS. A quick search for "Miami VPS" reveals $20 options which would do the trick.

http://www.hostvirtual.com/datacenters/miami

ISL• 12 years ago

The majority opinion leaves open the possibility of bandpassing the antenna signal and sending the (already compressed) digital TV signal across the internet to to be decoded at the user's machine. It appears to be the "performance" upon which the majority's opinion hangs; if the "performance" happens in-app on the user's box, it's possible to evade this requirement.

On the one hand, I'd agree with Scalia that the "looks-like-cable-TV" standard is a shaky one, at best. On the other hand, the court is saying "Look, we agreed in the past, but Congress explicitly disagreed with us. Go fix Congress, and we'll agree with you; we're not legislators."

notastartup• 12 years ago

Are there any other services like Aereo out there?

What was the key deciding factor that they broke the law?

What will happen now to Aereo's investors money? Will it be used to pay a large copyright royalty fee? Can it pivot? I think the latter is unlikely seeing they had no other plans, they bet the horse.

Reading this article back in March, I would've been freaked if I was an investor.

http://webcache.googleusercontent.com/search?q=cache:_Co4SqI...

    “No. There is no plan. We believe in our merit and we do
    think it’s the right thing. Progress is important. The 
    mission of this company was to try to create an open 
    platform, to try to wedge the system open a little bit.
    And if we don’t succeed in that despite our best 
    efforts, good law on our side, and the merits of our 
    case, it will be a tragedy but it is what it is.”

Aereo CEO

jervisfm• 12 years ago

Here's a (naive) question: In the US, is a Supreme Court ruling completely final ? What options, if any, are available to the losing party ? Is change through congress the only way to try to appeal rulings?

If there are no practical ways to repeal Supreme Court rulings, what happens when the Supreme Court makes a mistaken ruling?

dworin2• 12 years ago

The supreme court is the ultimate court of appeals in the United States - once you lose there, your only remedy is to change the law, or in some cases, change the constitution.

Since the supreme court interprets the law, the way you to change the ruling is to change the law. In a few recent cases, the supreme court has basically said (paraphrasing) "we don't like this ruling, but this is what the law says. If you want to fix it, talk to Congress, not us."

There have been some very notable instances where the Supreme Court has changed its mind or modified its prior rulings (for instance around civil rights), so while its the end of the road for this petitioner, it doesn't bar the law evolving in the future.

djflutt3rshy• 12 years ago

Yes, it's very strong legally. Congress or the states can try for a Constitutional Amendment (but those are few and far between, last one was in 1992), or the Supreme Court can later reverse itself partially or in full. An example of that would be Plessy v Ferguson in 1896, where the Supreme Court ruled segregation laws were constitutional, but later in the 50's (Brown v. Board of Education) they reversed it.

npizzolato4• 12 years ago

Those are the only options if they're ruling on the constitutionality of a certain law. If they're just deciding on whether or not an action violated any given law (as in this case), you could reverse the ruling by changing the law itself (i.e. through Congress).

ovulator• 12 years ago

Appealing to congress to change the law in question is the only recourse to the losing party.

What exactly do you mean by a “mistaken” ruling?

ghkbrew• 12 years ago

In the US the Supreme Court is the final arbiter of how the law is interpreted. So, off the top of my head, there are at least 2 ways the effects of a judgement can be reversed. 1) The law can be specifically amended by congress and 2) the Supreme Court can make a future ruling which is different than it's original.

Of course, there are intricacies here. Especially in case 2 where the weight giving to legal precedence makes it unlikely.

snowwrestler7• 12 years ago

The funny thing about this question is that the Court previously (in the 1970s) did rule in favor of this type of service, at the time known as community antenna TV. Congress then passed a new, revised copyright law that specifically outlawed this type of activity; it was under this law that the Court ruled against Aereo.

So that answers your question about what the next step could be, as well as why the Court ruled the way it did.

grellas• 12 years ago

The Copyright Act is a federal statute that protects any public performance of a copyrighted work from infringing uses.

Aereo took what were undisputedly public performances of works from broadcasters to the public, intercepted them, and by a feat of what amounted to technological legerdemain turned them into what it argued were no longer public performances but, instead, individualized transmissions from its service to each of its end users as an audience of one.

In this case, the Supreme Court rejected that argument, relying heavily on the idea that it was merely interpreting a statute (the Copyright Act) that had been amended by Congress in 1976 in part to overturn a couple of Supreme Court cases that had interpreted the prior Act to permit cable-TV style transmissions of copyrighted material free of copyright restrictions. The Court held that, in doing so, Congress intended to bring cable-like services such as Aereo into the Act's sweep regardless of the particular technological ways in which it handled the copyrighted material as it re-transmitted it to its users. Treating such technology, in effect, like a black box, the Court emphasized that, regardless of its innards, this service appeared to all concerned - to broadcasters, to viewers, etc. - to be functioning just like a cable service and therefore fell squarely within the Act's coverage as Congress had intended to modify it in making the 1976 amendments.

The most fascinating part of the decision, in my view, was how the Court arrived at this result while simultaneously trying to narrow its impact so that modern technological innovations would not be hit by its shrapnel. The Court not only did so but did so emphatically. Indeed, it devoted an entire section IV (pages 15-17) of its opinion to that issue. "We agree", said the Court, "that Congress, while intending the Transmit Clause to apply broadly to cable companies and their equivalents [i.e., Aereo], did not intend to discourage or control the emergence or use of different kinds of technologies." The Court then goes on to suggest (without deciding) a number of potentially key distinctions by which things such as, e.g., cloud music services might not in any way be infringing, including the prospect of fair use or the fact that the user receiving a transmission from the service may already own the copyrighted works being transmitted. I believe this is a strong signal from the Court that lower courts are not to ham-handedly interpret copyright law to stifle innovation but are to apply it carefully to prevent its abuse.

All in all, this decision represents a guarded upholding of traditional IP protections that prevents the use of technology to enable free-wheeling use of broadcasted materials while at the same time limiting its holding to that narrow sphere. Given the technical wording of the Act, it could just as easily have gone the other way and upheld the Aereo service as nothing more than something that facilitates individual, "private" performances via a streaming technology. But that would certainly have glorified form over substance and, I think, the Court got it right in the end.

rayiner5• 12 years ago

Wonderful summary, and I agree with your conclusion: people should take this as the Court saying "no" to Aereo's contrived, free-riding business model, and others like it, not to new technologies that enable people to store and access content which they already own [a license to].

chris_mahan• 12 years ago

You don't own media content. You own a license for media content. Your use of the media is dictated by its license.

coldpie8• 12 years ago

Can I set up my own antenna in New York and stream its recordings back to myself in Minneapolis? How long is my antenna allowed to be before it magically switches to becoming illegal? This is an incredibly stupid decision that raises many more questions than it answers.

Nelson69• 12 years ago

The question I have is are the local broadcasters prevented from making deals with Aereo, is it too expensive for Aereo? Or rather did Aereo just choose to not deal with them in the first place? If they had won, could they 'install cable' or a dish in their data center? (For example, could I rent a cable contract through Aereo and then get internet at my home, my office and then my condo in the mountains and share the same content between the three?)

Seems to me that they should just start making deals with the locals, Dish network charges something like $5 a month for access to it so it seems like Aereo could ink a deal with a similar cost.

evanm2• 12 years ago

"I think, the Court got it right in the end"

I don't see how this really differs from a person setting up recording equipment in his/her own home to capture that OTA broadcast for later viewing—which itself is legal.

theworst• 12 years ago

To me, one difference is the presence of a third-party for-profit entity (Aereo, in this case).

cracell• 12 years ago

Because Aereo was selling a service of setting up and running that equipment for you.

I have mixed feelings on the whole case but your example isn't directly comparable.

Really though the whole idea of local broadcasts of national shows no longer makes sense. The networks should just live stream their shows online for everyone. This isn't in the interests of the local affiliates and probably is not legally feasible right now due to various contracts with them.

But because of technological changes we don't need local affiliates in their current form anymore. Of course there are local news shows and they are still valuable and networks should show locally targeted commercials but the old broadcast using local affiliates model doesn't make sense with modern broadband capabilities.

psychometry• 12 years ago

Can broadcasters now sue Aereo for damages?

ewillbefull• 12 years ago

I understand the Court has some role in determining intention, but the nature of the technology in the background is crucial in determining whether it violates the law. I'm confused about the implications of the ruling.

Would this ruling find me liable if I created "dumb pipe" rented antennas streamed online, like Aereo, if I didn't make it an express goal of the service to watch television? Or say, a filesharing service which has plausible deniability (like client-side encryption) and no expressed intentions for its use to violate the Copyright Act, but that can incidentally be used by consumers to do so? Could the court simply call those kinds of services/software "technological obfuscation" and consider it forbidden? (I believe the court has strayed toward this argument in Grokster and other cases unfortunately.)

If so, I can't make a fair, fundamental distinction between that and any other cloud-like service. Devoting a section to "distinctions" to make lower-court precedent messier cheats a proper interpretation of the facts and will create ambiguity.

I really hope I'm misunderstanding this!

sanderjd• 12 years ago

The potential for this sort of confusion is one of the main things that Scalia's dissent strongly criticizes:

  "The Court manages to reach the opposite conclusion only
   by disregarding widely accepted rules for service-provider
   liability and adopting in their place an improvised
   standard (“looks-like-cable-TV”) that will sow confusion
   for years to come."

pbreit5• 12 years ago

What I am still wondering is 1) does there remain any possibility to set up such a service so that it could reasonably be called a "long antenna cord" (which part of the Aereo solution violates that?) and 2) does the special nature of broadcast content vis-a-vis public airwaves, etc, have much of an impact on the situation?

This non-lawyer feels that Aereo might have mis-stepped by 1) not going with a tighter "we are a long antenna cable" approach and 2) trying to scare everyone into thinking a ruling against it would somehow stifle mostly unnrelated cloud innovation.

ScottBurson• 12 years ago

For once I agree with Tony Scalia (a rare event indeed!). The question before the Court was not whether Aereo should be permitted to keep operating, but simply whether a preliminary injunction should be granted against it on the grounds of direct infringement of reproduction rights. A decision in the negative would have returned the case to the lower courts for litigation of the remaining questions; it wouldn't have put Aereo in the clear.

And I think Scalia is right that Aereo does not commit a volitional act when one of their subscribers plays back a recorded show. By not committing a volitional act, they cannot be guilty of direct infringement.

I personally also think that the resulting performance is, crucially, not public. (Scalia explicitly does not address this question.) But this argument appears unlikely to prevail in the end.

baddox13• 12 years ago

In other words, copyright laws are not some clear set of rules derived from a clear set of ideas or principles. Rather, they are a bunch of vague nonsense that will be interpreted by government on a case-by-case basis, such anything that is opposed by major groups which represent content creators or distribution channels will be deemed illegal.

the_watcher• 12 years ago

I agree - the dicta in this case sends a strong signal that SCOTUS will likely closely monitor any citations of this case as precedent for aggressive application of the Copyright Act. They are also sending a message to the legislature that there may be issues now arising from the language of the act that require clarification (not that Congress is likely to act on the message). I'm a bit disappointed in the outcome, and agree with Fred Wilson that this likely pushes innovation towards hardware operated and installed by the individual to address the issue, but, as defeats go, this is a reasonably encouraging decision.

kdot• 12 years ago

I would love for Aereo to open source the technology, sell me an antenna so that I can run my own Aereo service and stream TV to myself.

vibrolax6• 12 years ago

You don't need anything from Aereo's stack to do this. Get a device such as a Silicon Dust HDHomerun. http://www.silicondust.com/products/hdhomerun/hdhomerun-dual... This box is 1 antenna in, 2 ATSC tuners, 1 ethernet out. If you want to stream on your LAN, there are clients for Windows and Linux. XBMC supports it. I can't see why you couldn't serve it over the internet as well.

Glyptodon• 12 years ago

If aliens have a TV channel does that make SETI@home illegal?

jusben13692• 12 years ago

I think this is a good read as it relates to the broader implications of this decision;

http://www.vox.com/2014/6/25/5841820/the-supreme-courts-aere...

jrockway• 12 years ago

This is a disaster for anyone that offers cloud services. It's legal for me to set up an antenna in a data center and stream what I receive to myself. But it's apparently not legal for me to pay someone to do the exact same thing. What's funny is that if the antenna were connected to me via a coaxial cable, it would probably be legal. But since it uses packets and Cat-6 cables and that crazy Intarwebs thing, it's not. I don't get it.

This is annoying because it also obviously affects useful things like WebSDR. Since WebSDR nodes can tune VHF/UHF, they can receive copyrighted TV and music, which means they're now illegal to run under this ruling. (Fortunately, all the good WebSDR nodes are outside the US, so it doesn't matter in practice. But if you were going to set one up in the US, think again.)

ashmud• 12 years ago

Bit of an "edit war" on their wikipedia page over declaring them defunct already. https://en.wikipedia.org/w/index.php?title=Aereo&action=hist...

dguaraglia• 12 years ago

What bothers me about this is how quickly decisions are made when it comes to content and copyright.

Average Joe doesn't give a flying f* about his privacy, the loss of life in war, the obscene spending on failed military projects, the lack of social programs, the millions stuck with ridiculous student debt...

But hey, touch their right to watch Netflix or some local station from NYC from their house in California and SHIT GETS REAL!

Tsk tsk...

Supreme court: Aereo is violating copyright law [pdf]

Related Stories