Back in April, Aereo won
its appeal, saying that its system to allow people to watch broadcast TV over the internet, via an individual antenna (each customer gets their own antenna) is not infringing. As we've said, this is basically an argument of whether or not the length of a cable turns non-infringing activity into infringing activity. Everyone agrees that it's legal to put up your own antenna and watch broadcast TV. For the most part, it's recognized (though not universally agreed) that you can "place shift" the authorized TV that you watch to another place. This is basically what Aereo was doing. But, the networks, completely freaked out that this might mean the very large fees the cable providers pay them for retransmission might go away, insist that this must be illegal, because, basically, they really like the money they get from cable companies and anything that takes away that revenue stream must be illegal. Except, both the district court and the appeals court rejected that, in large part relying heavily on the important Cablevision ruling, which allowed Cablevision to offer a remote DVR service to its customers.
The networks, of course, asked the appeals court to rehear the case en banc (with a full panel of 11 judges, rather than just the 3 who heard the case initially). That's now been rejected
, but Judge Denny Chin, who has a bit of a history siding with the TV guys against upstart innovators is pretty upset about this. Chin was the dissenting judge in the original ruling on Aereo, and he's also the judge who ruled against ivi
-- a startup that tried to do something somewhat similar to Aereo, but through different means. Also, before Chin was on the appeals court, as a district court judge, he made the original ruling in that key Cablevision case, in which (shocker) he sided with the networks over Cablevision. In other words, every time this kind of issue has come up, Chin sides with the broadcasters and against the innovators.
Chin's dissent from the decision to reject an en banc rehearing is quite incredible. I saw someone quote the following line, which I had through was a joking paraphrase of Chin's argument, but this is verbatim from the dissent:
Aereo's reliance on Cablevision is misplaced because, in my view, Cablevision was wrongly decided.
That's a fairly startling admission. Here's a precedent, and the judge is saying that the company can't rely on the precedent because he doesn't agree
with the precedent. That's not how this is supposed to work. Yes, Chin may have had his feelings hurt because the appeals court overturned his original ruling in Cablevision, and now the other judges have gone against him, but that does not mean
he gets to simply ignore the ruling because he doesn't like it.
Most of Chin's dissent is basically a close copy of the networks' arguments, which is, again "the networks make money this way, and how dare
some company undercut their business model." This is kind of weird. The very nature of disruptive innovation is that it often undercuts existing business models. But that's called competition. It's not supposed to be illegal. Chin also approvingly cites his own ruling in the ivi case, where he accepted -- without question and with no factual basis beyond the claims of the networks -- that allowing such startups to thrive would harm their rights.
But, the crux of his argument is simply that he's feeling hurt that his Cablevision ruling got overturned, and even if it's precedent, Aereo shouldn't be able to rely on it, because Chin wants to overturn it:
The panel majority's decision is based entirely on
Cablevision. In my view, however, as some of the
broadcasters argue, Cablevision was wrongly decided. Of
course, I was the district judge in Cablevision, and I
recognize that the panel was bound by the Court's decision
in Cablevision, to the extent the decision is controlling. But rehearing these cases en banc would also give the Court
the opportunity to reconsider Cablevision.
Basically, I lost last time around, and even though Aereo is relying on the winning side, that shouldn't be allowed, because I'm still bitter that I lost, and I'd like to overturn Cablevision first, and then use that to shut down Aereo too.
It's difficult to see how this is an unbiased judge, looking at these cases impartially.