Disney's ABC network will become the first broadcast network to stream its shows live online through an ongoing service, starting with viewers of its TV stations in New York and Philadelphia on May 14 and expanding to its other stations by the end of the summer.

Starting on July 1, Disney will only provide its WATCH ABC service to subscribers of cable, satellite and other TV subscription services that have agreements with ABC to offer the service to their subscribers in New York and Philadelphia. Subscribers must provide an authentication code to be granted access to the shows.

Later this summer, Disney said it will expand use of its WATCH ABC service to authenticated subscribers that receive its TV stations in Los Angeles, Chicago, San Francisco, Houston, Raleigh-Durham and Fresno, California.

The app will initially allow users to be able to watch the service on Apple's iPad and iPhone and on the Kindle Fire device, and later this summer on Samsung Galaxy devices.

The report also claims that in the future, ABC will “withhold its most recent TV episodes from the free versions of Hulu and ABC.com, further limiting access to paying subscribers of cable and satellite providers only.”

“If we can’t have our rights properly protected through legal and governmental solutions, we will pursue business solution. One solution would be to take the network and make it a subscription service. We’re not going to sit idly by and let people steal our content.”

“I know two that are talking about it,” he says, leaving open the possibility that the others might be as well. He declines to specify which, saying he’d heard it in a “talking over coffee” setting and didn’t want to betray a confidence....

“To say it’s serious is probably an overstatement,” Ancier says. Rather, it’s a contingency plan the networks in question are keeping in their back pockets in case they can’t prevail over Aereo and Dish in court or find some other way to stave off the threat they represent.

As discussed above, Cablevision’s holding that Cablevision’s transmissions of programs recorded with its RS-DVR system were not public performances rested on two essential facts. First, the RS-DVR system created unique copies of every program a Cablevision customer wished to record. Second, the RS-DVR’s transmission of the recorded program to a particular customer was generated from that unique copy; no other customer could view a transmission created by that copy. Given these two features, the potential audience of every RS-DVR transmission was only a single Cablevision subscriber, namely the subscriber who created the copy. And because the potential audience of the transmission was only one Cablevision subscriber, the transmission was not made “to the public.”

The same two features are present in Aereo’s system. When an Aereo customer elects to watch or record a program using either the “Watch” or “Record” features, Aereo’s system creates a unique copy of that program on a portion of a hard drive assigned only to that Aereo user. And when an Aereo user chooses to watch the recorded program, whether (nearly) live or days after the program has aired, the transmission sent by Aereo and received by that user is generated from that unique copy. No other Aereo user can ever receive a transmission from that copy. Thus, just as in Cablevision, the potential audience of each Aereo transmission is the single user who requested that a program be recorded.

Plaintiffs also make much of the undisputed fact that Aereo’s system was designed around the Cablevision holding, because it creates essentially identical copies of the same program for every user who wishes to watch it in order to avoid copyright liability, instead of using a perhaps more efficient design employing shared copies. However, that Aereo was able to design a system based on Cablevision’s holding to provide its users with nearly live television over the internet is an argument that Cablevision was wrongly decided; it does not provide a basis for distinguishing Cablevision. Moreover, Aereo is not the first to design systems to avoid copyright liability. The same is likely true of Cablevision, which created separate user associated copies of each recorded program for its RS-DVR system instead of using more efficient shared copies because transmissions generated from the latter would likely be found to infringe copyright holders’ public performance right under the rationale of Redd Horne.... Nor is Aereo alone in designing its system around Cablevision, as many cloud computing services, such as internet music lockers, discussed further below, appear to have done the same...

Though presented as efforts to distinguish Cablevision, many of Plaintiffs’ arguments really urge us to overrule Cablevision. One panel of this Court, however, “cannot overrule a prior decision of another panel.” ... We are “bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court.” ... There is an exception when an intervening Supreme Court decision “casts doubt on our controlling precedent,” ... but we are unaware of any such decisions that implicate Cablevision.

Aereo's "technology platform" is, however, a sham. The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.

CBS has dropped its lawsuit over ABC's Big Brother copycat, saying it was no longer interested in pursuing a case against a show no one is watching anyway. "The viewers have spoken and delivered the ultimate form of justice against The Glass House," CBS said in a statement, gloating over the low ratings for a series that likely would have escaped all viewer attention had CBS not made such a huge deal about it in the first place, and which certainly have less to do with "justice" than general apathy about watching another one of these things.

Nevertheless, the network also added that it will continue to pursue separate arbitration with the ex-Big Brother producers who allegedly stole "trade secrets" for use on Glass House, such as the top-secret strategy of using cameras to capture the arguments of extroverted strangers forced to share a living space, rather than having pleasant, shy people live comfortably in their own homes and then rendering them in pastels. That was their idea.

The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission's untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.

This would be true with respect to a regulatory change this abrupt onany subject, but it is surely the case when applied to theregulations in question, regulations that touch upon “sensitive areas of basic First Amendment freedoms,” Baggett v. Bullitt, 377 U. S. 360, 372 (1964); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 870–871 (1997) (“The vagueness of [a content-based regulation of speech] raises special First Amendment concerns because of its obvious chilling effect”).

"I think is very likely to induce quite different behavior than one would expect to see in the 'Big Brother' show."

CBS ANNOUNCES DEVELOPMENT OF “DANCING ON THE STARS,” AN EXCITING AND COMPLETELY ORIGINAL REALITY PROGRAM THAT OWES ITS CONCEPT AND EXECUTION TO NOBODY AT ALL

Los Angeles, June 20, 2012 – Subsequent to recent developments in the creative and legal community, CBS Television today felt it was appropriate to reveal the upcoming launch of an exciting, groundbreaking and completely original new reality program for the CBS Television Network.

The dazzling new show, DANCING ON THE STARS, will be broadcast live from the Hollywood Forever Cemetery, and will feature moderately famous and sort of well-known people you almost recognize competing for big prizes by dancing on the graves of some of Hollywood’s most iconic and well-beloved stars of stage and screen.

The cemetery, the first in Hollywood, was founded in 1899 and now houses the remains of Andrew “Fatty” Arbuckle, producer Cecil B. DeMille, Douglas Fairbanks, Jr., Paul Muni, Benjamin “Bugsy” Siegel, George Harrison of the Beatles and Dee Dee Ramone of the Ramones, among many other great stars of stage, screen and the music business. The company noted that permission to broadcast from the location is pending, and that if efforts in that regard are unsuccessful, approaches will be made to Westwood Village Memorial Park, where equally scintillating luminaries are interred.

“This very creative enterprise will bring a new sense of energy and fun that’s totally unlike anything anywhere else, honest,” said a CBS spokesperson, who also revealed that the Company has been working with a secret team for several months on the creation of the series, which was completely developed by the people at CBS independent of any other programming on the air. “Given the current creative and legal environment in the reality programming business, we’re sure nobody will have any problem with this title or our upcoming half-hour comedy for primetime, POSTMODERN FAMILY.”

“After all,” the spokesperson added, “people who live in glass houses shouldn’t throw stones.”

CBS is the exclusive U.S. licensee of Big Brother, which it has been broadcasting since 2000. Big Brother is a reality television series in which a group of people live together in a large house, isolated from the outside world. The contestants are filmed continuously. Each cycle of the series begins with 12-14 contestants, and over the course of three months, contestants survive periodic evictions. Through interactive features, viewers are able to have input into aspects of the show, such as challenges in which the participants compete. The last contestant standing wins. Like other valuable creative works, Big Brother is protected by copyright law, and anyon creating substantially similar work without authorization -- as appears to be the case with ABC in this instance -- is liable for copyright infringement.

• First up, we've got the ivi case, which may seem like the most similar in terms of offerings, but may actually be the least similar in terms of legal issues. ivi also offered (for a subscription fee) access to over the air broadcast channels via the internet. However, the method and legal arguments were somewhat different. ivi tried to mainly rely on Section 111 of Copyright law, which was what established a compulsory licensing system for cable systems to retransmit network television. Thus, it tried to argue that it was the equivalent of a cable system, and could get by with the compulsory rates.
  
  So far, it hasn't fared well in court. While the products are similar to the end consumer here, the method and legal arguments are pretty different. For what it's worth, the lawsuit against Aereo was filed in the same court as the one against ivi.



• The second case is the Zediva case. This one is actually much closer legally to Aereo, even if the products are somewhat different. Zediva worked by having a bunch of network-enabled DVD players in a data center. If you wanted to "rent a movie" online, you could do so, and a physical DVD would be put into a physical DVD player and streamed to you online. Zediva legally purchased the DVDs and argued that this was really no different than having a DVD player next to the TV. It's just that the cable is much longer. The similarities to Aereo are pretty obvious. Both involve a separate physical device at a central location being assigned to an end-user, and then content streaming from that device.
  
  Unfortunately for Aereo, Zediva has also not fared well in court -- a ruling that does not bode well at all for Aereo. The most troubling part of the Zediva ruling was that watching a DVD in your own private home, even if it was solely being streamed to you direct from a DVD player that only you could access for the duration of the movie, was considered a public performance. This seems like a pretty ridiculous reading of the law to some of us, but if the court in the Aereo case reads the law the same way, Aereo is sunk. The only slight ray of hope here may be that the Zediva case was in the Central District of California, rather than the Southern District of NY where the Aereo case is (and the ivi case was as well).



• The other "ray of hope" comes from the Cablevision ruling, which noted that a hosted DVR device could be legal and non-infringing, though it involved a horribly convoluted legal argument for the court to reach the conclusion it wanted, focusing on the legality of fleeting buffer copies. This is a ruling that the industry would love to kill off if it could. The good news here, beyond the nature of the ruling, is that this ruling came in the 2nd Circuit appeals court, which is precedent setting for the Southern District of NY where the Aereo case is taking place. It's not a direct comparison, but this ruling could conceivably help in at least one key part of the case.

Aereo does not believe that the broadcasters’ position has any merit and it very much looks forward to a full and fair airing of the issues.

Consumers are legally entitled to access broadcast television via an antenna and they are entitled to record television content for their personal use. Innovations in technology over time, from digital signals to Digital Video Recorders (“DVRs”), have made access to television easier and better for consumers. Aereo provides technology that enables consumers to use their cloud DVR and their remote antenna to record and watch the broadcast television signal to which they are entitled anywhere they are, whether on a phone, a tablet, a television or a laptop.

"Mom, you don't understand. I don't need it," her 19-year-old responded, saying she could watch whatever she wanted on her computer, at no charge....

"You're going to have a television if I have to nail it to your wall," she told her daughter, according to comments she made at a Reuters event this week. "You have to have one."

Scott's most virulent words were saved for News Corporation (owner of The Australian) chairman Rupert Murdoch and CEO Europe and Asia, James Murdoch.

He called Rupert Murdoch's recent call for content providers to charge online distributors for content as "a classic play of old empire, of empire in decline. Believing that because you once controlled the world you can continue to do so."

"When you have been so powerful and dominant for so long, it is hard to believe that empire is slipping away," he said.

Scott argued traditional media companies had been out-thought by technology companies in strategy.

He reiterated the ABC would continue to provide free online news content and said the ABC must remain audience-focused

... he noted the only media organisations to survive will be those that: know and accept that all the rules have changed; are endlessly inquisitive about the new; empower their audiences to contribute, to create and share media....

"As I'm sure you're all aware, foreign formats have increased in popularity as the basis for US television development and production. What is often overlooked, or not fully appreciated, are the complexities associated with negotiating format deals, coupled with the fact that often-times what is appealing in the format may be nothing more than a general underlying premise, which, in and of itself, may be no reason to license the underlying property."