As Expected, TV Networks Win Copyright Ruling Against Alki David's Name-Changing TV Streaming Service

from the bad-news,-bad-precedents dept

We warned that this was likely: Alki David, the eccentric rich guy who is being sued for an online TV streaming service with some similarities to Aereo -- whose name he changes (as he himself admits "on a whim") regularly -- has lost in court yet again. The company, which had been known as FilmOn, BarryDriller and Aereokiller, is apparently back to being called FilmOn, except that it's now FilmOn X. As we noted, there are significant differences between Aereo and whatever-the-hell David wants to call his company -- and part of that is that Aereo built its system very carefully with copyright law in mind, and was also quite careful about its legal strategy, with a wider plan for establishing a good legal precedent showing that copyright law shouldn't be different just because the length of a cable is different.

Unfortunately, FilmOn's similar efforts have been sloppy and at times reckless. It's no wonder that Aereo has won all of its court rulings, while David's multi-named offerings have lost all of their court rulings. Earlier, FilmOn (as BarryDriller) had lost in California. The court had held that the ruling only applied in the 9th Circuit, in part because of Aereo's success in the 2nd Circuit. That resulted in the networks suing again in the DC Circuit, where we predicted David would lose, setting yet another bad precedent, and that's exactly what happened. The court basically looks at the rulings in NY and California, and then comes to the same basic conclusion as the California court, more or less accepting the TV networks' argument that even though there's an individual antenna for each user, and each copy is only accessible to that single user account, each stream counts as a "public performance."

This is because copyright law is insane. The only real difference between someone watching a TV show remotely online using an antenna in their own home with a Slingbox and doing what these services do is in where "the box" and "the antenna" are placed. That's it. That means the real difference is merely the length of the wire between the TV and the antenna/recording device. If the cable is long (i.e., the antenna and recording device are at a different location), suddenly, according to these two courts, it's a "public performance." If the cable is short, it's not. That doesn't make any logical sense at all.

The TV networks asked for a nationwide injunction here, and Judge Rosemary Collyer basically gave it to them with the minor exception that it doesn't apply in the 2nd Circuit, given the Aereo rulings. Of course, as pretty much everyone has suspected, this growing "circuit split" almost certainly means that one of these cases will end up before the Supreme Court. I just hope that it gets there with Aereo's legal team, rather than David's. The TV networks, obviously, are hoping for the opposite.

Update: As if you need any more evidence of how "seriously" David is taking the case, check out his "response" to this rather big loss:
I’m on my yacht in (the) Mediterranean at the moment so they can kiss my hairy Greek ass.
He also claimed that the judge is "in the pockets" of the entertainment industry -- a charge that people throw around way too often.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Vincent Giannell, Sep 6th, 2013 @ 1:52pm

    "Alki David claimed that the judge is "in the pockets" of the entertainment industry -- a charge that people throw around way too often."

    Reading this will sure to make the judge angry of being accused of taking bribes.

     

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  2.  
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    crade (profile), Sep 6th, 2013 @ 2:09pm

    He also claimed that the judge is "in the pockets" of the entertainment industry -- a charge that people throw around way too often.

    Hold on.. So are you saying that there are people in the gov't who are not directly or indirectly in the pockets of the entertainment industry? Common now! Citation needed!

     

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  3.  
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    cpt kangarooski, Sep 6th, 2013 @ 2:14pm

    He also claimed that the judge is "in the pockets" of the entertainment industry

    That's ironic, as his efforts seem so intended to fail that I thought he was.

     

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  4.  
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    JJ, Sep 6th, 2013 @ 2:37pm

    Re:

    Glad I'm not the only one who thought this.

     

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  5.  
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    Anonymous Coward, Sep 6th, 2013 @ 2:48pm

    "He also claimed that the judge is "in the pockets" of the entertainment industry"

    Well, we know lawmakers are in the pockets of certain industry players.

     

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  6.  
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    Anonymous Coward, Sep 6th, 2013 @ 2:50pm

    Re: Re:

    I thought of this too. It would be easy enough for certain industry players to set up some shell to break the law in obvious enough ways, get sued by the players, and lose on purpose just to set precedent and make a mockery out of our system of injustice.

     

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  7.  
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    Anonymous Coward, Sep 6th, 2013 @ 2:51pm

    As we noted, there are significant differences between Aereo and whatever-the-hell David wants to call his company -- and part of that is that Aereo built its system very carefully with copyright law in mind, and was also quite careful about its legal strategy, with a wider plan for establishing a good legal precedent showing that copyright law shouldn't be different just because the length of a cable is different.

    Mike,

    Can you identify even one single technical difference between FilmOn X and Aereo that would lead to any significant legal difference between the two? I don't really understand how you think they are different technically. And why do you think that FilmOn X wasn't also trying to establish a "good legal precedent"? Are you saying they wanted to lose?

    This is because copyright law is insane. The only real difference between someone watching a TV show remotely online using an antenna in their own home with a Slingbox and doing what these services do is where "the box" and "the antenna" are placed. That's it. That means the real difference is merely the length of the wire between the TV and the antenna/recording device. If the cable is long (i.e., the antenna and recording are at a different location) suddenly, according to these two courts, it's a "public performance." If the cable is short, it's not. That doesn't make any logical sense at all.

    And yet nowhere in the Copyright Act or in Judge Collyer's opinion is the length of the cable mentioned. Can you explain how the court here got it wrong by addressing the actual legal reasoning employed by Judge Collyer? I don't understand why you keep pulling out this cable length argument when the cases both for or against services such as FilmOn X don't turn on the cable length. Does it not occur to you that the reason your theory "doesn't make any logical sense at all" is because that's not the theory these cases are decided under? Do you just not understand the opinions? Or do you just not care?

     

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  8.  
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    Anonymous Coward, Sep 6th, 2013 @ 2:52pm

    Re: Re: Re:

    and it certainly would not be out of character for IP extremists to pull something like this. The length of the protection of artworks and the constant retroactive extensions is proof enough that these people have no character.

     

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  9.  
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    That One Guy (profile), Sep 6th, 2013 @ 3:50pm

    Re:

    Funny, was thinking pretty much the same thing.

    Given Aereo has so far been winning all their court cases, it wouldn't be surprising in the least if the tv people went to someone and offered them a hefty sum if they were to put together a service similar enough that legal precedents would also apply to Aereo, but bad enough that it would be easy to sue out of existence.

    Would also help explain why the guy is so blase about his continued loses in courts, because if that were true then he's supposed to lose.

     

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  10.  
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    Drew, Sep 6th, 2013 @ 4:02pm

    Re:

    Here's a difference in the service that seems to be rather important: FilmOn seems to allow users to watch for free without creating an account. Without requiring accounts or making any kind of attempt at location-based availability, FilmOn really is conducting public retransmission of the signals, since anyone on the Internet can apparently access the content.

     

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  11.  
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    Anonymous Coward, Sep 6th, 2013 @ 4:17pm

    Are we sure there isn't some x senator from Ct paying this guy to do this?

     

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  12.  
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    Drew, Sep 6th, 2013 @ 4:24pm

    Re: Re:

    The judge also comments in a footnote that she disagrees with the Aereo decision anyway, essentially saying that any device or process that allows broadcast signals to be relayed to people other than one's family or social acquaintances violates the 1976 Copyright Act unless permission is granted by the broadcaster, even if each individual retransmission is kept isolated all the way through the process.

    So I suppose if Barry Diller invited each Aereo subscriber to dinner, there would be no problem :).

     

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  13.  
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    James Burkhardt (profile), Sep 6th, 2013 @ 10:54pm

    Re:

    I don't understand why you keep pulling out this cable length argument when the cases both for or against services such as FilmOn X don't turn on the cable length.

    Areo uses individual antennas to capture a signal, that feeds to individual DVRs, which are accessed over the internet by the specific individuals tied to each respective DVR. to recap legality of the various pieces of this equation:

    using an antenna: legal.
    using a DVR: Legal.
    Accessing that DVR over the internet: illegal.

    Its the internet that makes it illegal. How many hdmi signal repeaters (placed every 100 ft) does my signal from my dvr to my tv have to pass through before I am broadcasting? because AERO is just transforming the dumb cable chain I just described with the internet.

    The legal rationale is flawed because the judge has ruled that a 10 mile hdmi chain wouldn't be broadcasting, but achieving the same thing with the internet is. The "length of the cord" arguement is that the rational way to analyze this ruling is to take it to the logical conclution and assume that some how distance makes this a "public broadcast" or "retransmission, because data flowing over an hdmi cable or data flowing over ethernet cables aren't significantly different.

     

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  14.  
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    Anonymous Coward, Sep 7th, 2013 @ 1:15am

    Re: Re: Re:

    Also proving that she's made a ridiculous decision in her mind to be as illogical about the entire process as possible.

    Suddenly, David's remarks don't seem too far fetched.

     

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  15.  
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    Anonymous Coward, Sep 7th, 2013 @ 1:43am

    Re: Re:

    The problem with that analogy is you're transmitting to yourself. What Aero is doing is transmitting to a different person. Mike compares Aero to Slingbox. Same thing. Slingbox transmits to yourself, and Aero transmits to someone else. Oh, and they charge a fee too.

     

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  16.  
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    Not an Electronic Rodent (profile), Sep 7th, 2013 @ 3:27am

    Re: Re: Re:

    What Aero is doing is transmitting to a different person. Mike compares Aero to Slingbox. Same thing. Slingbox transmits to yourself, and Aero transmits to someone else.
    So, are you suggesting that it would be different if one bought the antenna and DVR personally and put it in a hosting service that it would be different? What exactly is it that you think is the "illegal" bit?
    How about if I built this myself and put it in a rented office somewhere?
    How about if I buy all the kit and rent the office but pay someone else to install it then operate it myself?
    Does it make a difference if I also pay the guy to maintain it for me?
    What if I invite him round to watch TV?

     

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  17.  
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    Anonymous Coward, Sep 7th, 2013 @ 5:35am

    Re: Re: Re: Re:

    So, are you suggesting that it would be different if one bought the antenna and DVR personally and put it in a hosting service that it would be different?

    I'm not sure what you mean by "hosting service" here. Do you mean to send it over the internet? Slingbox already does this.

    What exactly is it that you think is the "illegal" bit?

    Retransmitting without permission for profit.

    How about if I built this myself and put it in a rented office somewhere?

    What? Something like Aero? I'm sure you'd be fine since you're broadcasting to yourself. Even if it is illegal, you're unlikely to tell anyone and get caught.

    How about if I buy all the kit and rent the office but pay someone else to install it then operate it myself?

    Millions of people do this sort of thing all the time. With TVs, computers, washing machines. If it's legal for you to operate than it's legal for you to hire someone to install it for you.

    Does it make a difference if I also pay the guy to maintain it for me?

    Are you compensating him by transmitting TV service to him? Then no.

    What if I invite him round to watch TV?

    Nope.

     

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  18.  
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    James Burkhardt (profile), Sep 7th, 2013 @ 8:42am

    Re: Re: Re:

    Slingbox transmits to yourself, and Aero transmits to someone else. Oh, and they charge a fee too.

    Get rid of the profit motive arguement, because the profit motive arguement does not affect the question of retransmitting.

    The length of the cord arguement goes back to Cablevision. There the 2nd Circut court found that the only thing that differed between remote DVRs and an in-home DVR was the location of the DVR, or in other words, the length of the cord.

    Now the judge who first ruled against AreoKiller specificly noted that he disagreed with Cablevision was poorly ruled and so a service designed to mimic Cablevision would then clearly be in the doghouse as well. And as Mike admits, AeroKiller was a badly designed service that seemed designed to fail. But no matter what arguements the judges might make, for a well-designed service Cablevision got the arguement right.

    Now your blase commentary that slingbox is legal muddies your arguement. Because Areo went out of its way to make the 'inital capture' on an individual customer basis, the only difference between Aero's setup and a legal one is that someone else set it up.

    You completely missed the point of Rodent's post as well, where you claim that its not illegal to rent an antenna/DVR/Slingbox, rent an office, and pay a guy to install and maintain the Antenna/DVR/Slingbox. Which is what Aero does. They just have a bunch of people paying them.

    What difference, other then profit (as a profit motive does not change the nature of a retransmission) makes the theorietical setup you decided was ok different from Aero?

     

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  19.  
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    nasch (profile), Sep 7th, 2013 @ 7:27pm

    Re: Re: Re: Re: Re:

    If it's legal for you to operate than it's legal for you to hire someone to install it for you.

    Then why is it illegal to hire Aereo to manage it for you? You can hire someone to install it, but if you hire him to manage the equipment as well, it's copyright infringement? Or do I have to own all the equipment, and then it doesn't matter who operates it? Could I lease the equipment from someone else? And what part of copyright law is this all coming from?

     

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  20.  
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    Atkray (profile), Sep 7th, 2013 @ 8:36pm

    Re: Re: Re: Re:

    He called his company Aereokiller at one time, I think it is pretty obvious that this was the plan all along.

     

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  21.  
    identicon
    Anonymous Coward, Sep 8th, 2013 @ 12:37am

    Re: Re: Re: Re: Re: Re:

    I'll simplify all of this. If it's for personal use, it's legal. Once you you start rebroadcasting to multiple people it becomes a commercial venture. This is what cable and satellite are doing now, except they do it with the consent of the broadcasters.

    I never said anything about copyright law.

     

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  22.  
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    Anonymous Coward, Sep 8th, 2013 @ 12:46am

    Re: Re: Re: Re:

    Because they're a service that specializes in retransmitting. What is the difference between a cable company and Aero? Both retransmits video signals over a network and both are hired to maintain equipment to perform such tasks. Looking at Aero this way, Aero is a cable company. Where the question of legality comes up is that Aero doesn't have the permission to do what they're doing.

     

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  23.  
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    nasch (profile), Sep 8th, 2013 @ 7:11am

    Re: Re: Re: Re: Re: Re: Re:

    If it's for personal use, it's legal. Once you you start rebroadcasting to multiple people it becomes a commercial venture.

    Just because it's a commercial venture doesn't make it illegal, regardless of who has or has not consented.

    I never said anything about copyright law.

    Then what law do you think is broken?

     

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  24.  
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    nasch (profile), Sep 8th, 2013 @ 7:18am

    Re: Re: Re: Re: Re:

    Because they're a service that specializes in retransmitting.

    But what specific factor or factors makes that illegal? There seems to be agreement that if you buy equipment, rent a remote location, install the equipment there and stream the signals to your home over the internet, it's legal. So when Areo does the exact same thing (a piece of equipment dedicated to you streaming only you signals that you could legally get at your home), why is it illegal?

    - you're paying them
    - they own the equipment

    I have never heard of any aspect of copyright law that says a private performance becomes a public performance if those conditions are true. And I don't know of any other relevant differences between doing it yourself and having Aereo do it. So what's the deal?

    Where the question of legality comes up is that Aero doesn't have the permission to do what they're doing.

    That is not relevant unless what they're doing is copyright infringement. If it is not infringement, then they don't need anybody's permission to do it.

     

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  25.  
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    Not an Electronic Rodent (profile), Sep 9th, 2013 @ 2:16am

    Re: Re: Re: Re: Re: Re: Re:

    If it's for personal use, it's legal. Once you you [sic] start rebroadcasting to multiple people it becomes a commercial venture.

    OK, so to carry on my example above...
    Let's say I get a guy to install kit to do this in a rented location and maintain it for me as described above. I'm the only one getting the output from this piece of kit, so according to your answer above, you think this is fine.
    Now the guy (who I'm paying to maintain this kit for me) thinks "Hey maybe other people might want the same deal" and starts advertising his services as a "Remote TV custodian", pretty soon he's got a bunch of people doing the same thing. Still OK? If not, why?

    After a while he thinks "this is silly... I'm running all over town after this stuff". He rents an office of his own and offers to move people's kit into it. It cuts everyone's costs so great, they love it. Still OK? If not, what's wrong?

    Then he thinks "Hang on a minute, I'm installing this stuff, but the customers are buying it and shipping it to me. Since I'm the one who knows what they need, why don't I just buy it for them too and stick it on the first maintenance bill"? Anything wrong yet? What?

    Next comes "Well why don't I just buy it myself and rent it to them? Then if they don't want it anymore I can use it for someone else and it's more environmentally friendly". I assume you must have a problem by now since this is pretty much what Aereo are doing. So what it is? It can't be "it's a commercial venture" - it has been commercial from the start since I was paying the guy to maintain the service so it must be something else.

    Finally (and this as far as I can see is the only step that goes beyond what Aereo have done), he decides that a setup per person is insane since loads of customers can share 1 setup and consolidates it down. Describe what the problem is please?

    Now let's look at it from the TV company's point of view. This is an unencrypted broadcast signal, so there's no real way for them to know ever who's looking at it or where from. As far as I know the US has no TV licensing, so the potential lack of a TV at the end isn't a problem. The broadcasting TV company's revenue relies on advertising and therefore eyeballs watching, which if anything is going to go up.
    If the broadcasting service really has a problem, it seems to me the best way to handle it would be to go to the guy running the service and say "Hey if you're going to do this, can we have the stats of how many people are pulling each channel and when - we can beef up our own advertising numbers with that", then everybody wins, do they not?

     

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  26.  
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    Not an Electronic Rodent (profile), Sep 9th, 2013 @ 2:21am

    Re: Re: Re: Re: Re:

    Because they're a service that specializes in retransmitting.
    So if they were doing it as a side line while, say, being a software development house, it wouldn't be a problem???

     

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  27.  
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    Anonymous Coward, Sep 9th, 2013 @ 11:50pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    I'll say again. retransmitting without permission I only said it about a half dozen times already. If they can do it, why can't cable companies?

     

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  28.  
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    Anonymous Coward, Sep 10th, 2013 @ 12:07am

    Re: Re: Re: Re: Re: Re:

    I'll try to keep clutter down as much as I can.

    Aero doesn't let you buy the equipment, like Slingbox, or NaER's example, you pay for the retransmission service. Everything else is personal equipment you bought, or bought on your behalf, for your personal use. Again, Aero is not some personal custodian of your, and others, equipment. They set out to retransmit to large numbers of people.

    Unless I missed it, no one has said what the difference is between Aero and a cable company.

     

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  29.  
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    nasch (profile), Sep 10th, 2013 @ 5:56am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I'll say again. retransmitting without permission

    But we've outlined scenarios where retransmitting without permission should be (and is) perfectly legal, and you have failed to describe what is different about Aereo that would make it illegal.

    If they can do it, why can't cable companies?

    Because cable companies broadcast. If Aereo were just streaming everything to anyone who visited their web site, that would be illegal too. But they're not.

     

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  30.  
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    nasch (profile), Sep 10th, 2013 @ 6:00am

    Re: Re: Re: Re: Re: Re: Re:

    Aero doesn't let you buy the equipment

    So if you bought the equipment and then had Aereo manage it for you, that would be legal? What part of copyright law says that the ownership of receiving and transmitting equipment is significant?

    Unless I missed it, no one has said what the difference is between Aero and a cable company.

    I just did above, but the difference is Aereo has an antenna dedicated to each customer, and they only stream to customers that live within the same broadcast area as that antenna. They are only doing what each customer could do for themselves, without getting permission from any copyright holder.

     

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  31.  
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    Not an Electronic Rodent (profile), Sep 10th, 2013 @ 9:07am

    Re: Re: Re: Re: Re: Re: Re:

    Again, Aero is not some personal custodian of your, and others, equipment.
    So, by that rationale, if they wrote their bills like this:
    June 2013
    Equipment rental: $x
    Monthly Maintenance charge: $y
    Total: $z

    It would suddenly be OK to be providing the same service?

    They set out to retransmit to large numbers of people.
    So it doesn't matter if you end up providing a service for loads of people as in my example above, just if that was the intention to start with?

    You still haven't made clear at all exactly what you think is or should be illegal about what they're doing. As far as I'm aware, "being like a cable company" even if true is not a valid charge, neither is "making money providing a service".

     

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  32.  
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    Not an Electronic Rodent (profile), Sep 10th, 2013 @ 10:06am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I'll say again. retransmitting without permission
    Except that's not what you're saying. You've already said yourself that paying someone else to re-transmit things to you is fine. Perhaps you have an issue with having the same someone do the same thing to multiple people at once? I also notice that as well as "re-transmit" you keep using the word "re-broadcast". Perhaps this is where the misunderstanding lies?
    What Aereo are doing is not broadcasting but instead multiple instances of unicasting. As I understand it, the law does indeed make broadcasting illegal without a license (which presumably was originally intended for airway control and just shows how little law keeps up with the real world), but I've yet to see anyone say where point-to-point retransmitting is illegal.

     

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  33.  
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    Bob Zeryunkel, Sep 10th, 2013 @ 10:49am

    Re: Re: Re: Re: Re: Re: Re:

    @anonymous coward - There is a difference, the legal term for a cable company is MVPD and it is narrowly defined. Aereo doesn't meet the definition and retransmission fees are not applicable. If you're paying attention you'll note that the lawsuits are not about retrans, they are about copyright infringement.

     

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