McClintock (CBS' exec VP of communications) sure doesn't mince words, but he does mince reality. The broadcasters are not faring well against Aereo, with the courts all apparently recognizing that the company has carefully followed the letter of the law established in the Cablevision ruling. It's bizarre that he would try to characterize the situation as an obvious win for CBS when the exact opposite is true — especially in a conversation with tech analysts and journalists. Still, points for confidence, I guess.

It didn't end there, either:

After [Verge editor Ben] Popper noted that CBS' signals were not being stolen and that the public owned the airwaves, McClintock responded: "Yet it's ok for Aereo to profit from the same public. Hmmm..."

Greenfield got in a zinger by noting the similarities between Aereo and Amazon's services. "Amazon 'makes money'" Greenfield wrote on Twitter, "on selling antennas to watch broadcast TV, and they ship to Boston."

The question of "profiting from the public" is a red herring, and not a smart one for CBS to bring up. After all, the networks profit from their public broadcasts, too. Do they plan to give back all the money they have made from selling ads on the publicly-owned airwaves for which they paid no access fee?

The fact that the airwaves are owned by the public only means what it sounds like. It means the ability to broadcast on the airwaves is permitted by the public — it does not have anything to do with how the public accesses those airwaves, or whether or not someone is making a profit. As Greenfield points out, by McClintock's logic, it would be wrong to charge money for a TV antenna.

The Twitter exchange perfectly highlights a key issue here: thanks to the vagaries of copyright law, the whole fight over Aereo (and over remote DVR) is basically a fight about the length of a wire. Selling a home TV antenna? Legal. Renting a home TV antenna to someone? Yup. Selling someone a setup that hooks their antenna into a computer and then into their network, so they can watch it on any of their devices? No problem. Renting that same setup to them? Sure thing.

But doing any of that from slightly further away? 'Illegal!' cry the networks.

Luckily, despite the networks' facade of confidence and silly threats to pull their broadcasts, the courts seem to be well aware of the ridiculousness of their argument. Given the recent rulings, it seems unlikely that a new lawsuit in Boston would gain much traction — but, of course, just the fact that the lawsuits keep on coming serves as a roadblock to Aereo's innovation. The broken analogies enforced by copyright law have resulted in an insane situation with online streaming (among other things), and the fact that the fight with Aereo has even gone this far (and shows no signs of stopping) just underscores the severity of the problem.

Editors' note: The Dish Hopper with Sling was removed from consideration for the Best of CES 2013 awards due to active litigation involving our parent company CBS Corp. We will no longer be reviewing products manufactured by companies with which we are in litigation with respect to such product.

1. Hello Streisand Effect. There were approximately one gazillion articles this week about products coming out of CES, and the place was wall to wall with journalists -- probably half of whom were coming up with their own "best of" lists. Most people were completely saturated with CES stories and would barely glance at such a story. Except... now, tons of people are suddenly finding out about this awesome Dish DVR, the Hopper with Slingbox. In fact, they're hearing that the damn thing is so good that CBS is trying to block any news of it from getting out. Talking about increasing the awareness... I have no clue whatsoever what product CNET -- or any other publication -- awarded "best of CES" to. But I sure as hell am well aware of Dish's new DVR.
2. Goodbye to the wall that separates the suits from the journalists at CBS/CNET. CBS execs have just confirmed that they don't want their journalists and reviewers to cover things based on the merits, but rather on what it means for their corporate masters.
3. Hello slippery slope. Is it really that hard to see where this heads next? Is CNET still allowed to report on the lawsuit if CBS loses? If they can't talk about the products, what about the legal issues themselves?
4. Goodbye journalists with credibility. Frankly, CNET has always had some of the strongest tech reporters in the business. For many years I've considered it one of the top tech news sites out there. I have tremendous respect for many of the reporters there. But, now I have to wonder how much the suits are interfering with their ability to report things accurately.
5. Goodbye to principled journalists who want to work for CBS. If I'm a journalist at CNET right now, I'd be seriously considering quitting in protest. This move seriously harms the brand and reputation of the site, and this is the kind of thing that journalists should stand up against. Having the suits interfere with what they can write about is generally seen as a massive offense to journalists. I would bet this leads to some of the best, most principled CNET reporters jumping ship to elsewhere.
6. Good luck to CNET hiring new journalists. Who wants to jump into that toxic situation?

[0016] To illustrate, an exemplary ambient action may include the user eating, exercising, laughing, reading, sleeping, talking, singing, humming, cleaning, playing a musical instrument, performing any other suitable action, and/or engaging in any other physical activity during the presentation of the media content. In certain examples, the ambient action may include an interaction by the user with another user (e.g., another user physically located in the same room as the user). To illustrate, the ambient action may include the user talking to, cuddling with, fighting with, wrestling with, playing a game with, competing with, and/or otherwise interacting with the other user. In further examples, the ambient action may include the user interacting with a separate media content access device (e.g., a media content access device separate from the media content access device presenting the media content). For example, the ambient action may include the user interacting with a mobile device (e.g., a mobile phone device, a tablet computer, a laptop computer, etc.) during the presentation of a media content program by a set-top box (“STB”) device.

[T]raditional targeted advertising systems and methods fail to account for one or more ambient actions of a user while the user is experiencing media content using a media content access device. For example, if a user is watching a television program, a traditional targeted advertising system fails to account for what the user is doing (e.g., eating, interacting with another user, sleeping, etc.) while the user is watching the television program. This limits the effectiveness, personalization, and/or adaptability of the targeted advertising.

[0019] Detection facility 104 may be additionally or alternatively configured to analyze data received by way of a detection device in order to obtain information associated with a user, an ambient action of the user, a user's surroundings, and/or any other information obtainable by way of the data. For example, detection facility 104 may analyze the received data utilizing one or more motion capture technologies, motion analysis technologies, gesture recognition technologies, facial recognition technologies, voice recognition technologies, acoustic source localization technologies, and/or any other suitable technologies to detect one or more actions (e.g., movements, motions, gestures, mannerisms, etc.) of the user, a location of the user, a proximity of the user to another user, one or more physical attributes (e.g., size, build, skin color, hair length, facial features, and/or any other suitable physical attributes) of the user, one or more voice attributes (e.g., tone, pitch, inflection, language, accent, amplification, and/or any other suitable voice attributes) associated with the user's voice, one or more physical surroundings of the user (e.g., one or more physical objects proximate to and/or held by the user), and/or any other suitable information associated with the user.

Despite this creative attempt to escape from the express holding of Cablevision, for the reasons discussed below this Court finds itself constrained to reject the approach Plaintiffs urge. Contrary to Plaintiffs' arguments, the copies Aereo's system creates are not materially distinguishable from those in Cablevision, which found that the transmission was made from those copies rather than from the incoming signal. Moreover, Plaintiffs' attempt to distinguish Cablevision based on time-shifting fails when confronted with the reasoning of that case, particularly considering that the Second Circuit's analysis was directly focused on the significance of Cablevision' s copies but did not say one word to suggest that time-shifting played any part in its holding.

For tech folks, from the 35,000' view, there are islands of opportunity. There's Apple Island, Facebook Island, Microsoft Island, among many others and yes there's Music Biz Island. Now, we as tech folks have many friends who have sailed to Apple Island and we know that it's $99/year to doc your boat and if you build anything Apple Island will tax you at 30%. Many of our friends are partying their asses off on Apple Island while making millions (and in some recent cases billions) and that sure sounds like a nice place to build a business.

Now, we also know of Music Biz Island which is where the natives start firing cannons as you approach, and if not stuck at sea, one must negotiate with the chiefs for 9 months before given permission to dock. Those who do go ashore are slowly eaten alive by the native cannibals. As a result, all the tugboats and lighthouses (investors, advisors) warn to stay far away from Music Biz Island, as nobody has ever gotten off alive. If that wasn't bad enough, while Apple and Facebook Island are built with sea walls to protect from the rising oceans, Music Biz Island is already 5 ft under and the educated locals are fleeing for Topspin Island.

Users of the Hopper's PrimeTime AnyTime feature who record Plaintiff's prime-time shows and use the Hopper's Auto Hop feature to automatically skip commercials otherwise contained in those recordings infringe Plaintiffs' exclusive reproduction rights under section 106 of the Copyright Act,

Auto Hop is a more efficient way of achieving what consumers already do with standard DVRs. A 30-second skip feature is already standard on many DVR remote controls. It permits viewers to automatically skip ahead in a recording, at the touch of a button, completely bypassing a typical 30-second television commercial. The remote controls that come with DVRs supplied by Comcast, an NBC affiliate, can be programmed to include this 30-second skip feature. DISH has provided a 30-second skip feature for years. By pressing the 30-second skip button multiple times, a viewer can elect to bypass the full complement of commercials between show segments. Now, DISH allows the customer to opt to use an Auto Hop feature that is just an extension of this 30-second skip function. It avoids the common frustration that occurs when viewers, using the 30-second skip or plain fast-forwarding, overshoot the commercials and fastforward into the television programming content that they really want to watch.

DISH's Auto Hop feature promotes consumer autonomy. Viewers have skipped commercials for decades. Viewers commonly use the commercial break as a time to get up and momentarily leave the room. Ever since the advent of the remote control, viewers have changed channels or muted the sound during commercial breaks. And, since the advent of the VCR and DVR, viewers playing back a show have fast-forwarded through commercials. DISH is simply making it easier for viewers to refuse to be a captive audience and to exercise the well-accepted choice to skip a commercial.

“Viewers love to skip commercials,” Vivek Khemka, vice president of DISH Product Management, said in a statement

"I think this is an attack on our eco-system," said NBC Broadcasting chairman Ted Harbert on a conference call Monday. "I'm not for it."

Ten years ago, ReplayTV and TiVo burst onto the scene introducing the digital video recorder (DVR) to the world. Immediately some predicted the end of the TV business because people could fast-forward through commercials. Lawsuits put ReplayTV out of business (in spite of superior technology). Eventually cooler heads prevailed and the technology thrived to the point where nearly half of American households have a DVR. Consumers could, for the first time, enjoy their favorite programming at a time convenient for them. Thanks in large part to the DVR, TV viewing is up 40% over the last decade which is especially notable given that competition for consumer attention has stiffened due to internet browsing, Skype, video games, and social networking.

You would think that with this backdrop radio companies would welcome DVR technology into their own industry and many probably will but at least one doesn't - Univision.

While recording broadcasted material may be new to radio, it's not new to society and surely Univision must know that. Nearly 50% of US households have a DVR today. Univision's TV business dwarfs its radio business. It's likely that millions of people are making recordings of Univision TV shows as I write this. And some may be blinking their eyes or listening from another room transforming these video recordings into audio recordings. Similarly, internet users can capture online articles for later viewing using popular services like Readitlater and Instapaper and some may be doing that from the Univision.com website. If it's legal in those channels it only makes sense that the same functionality is legal for radio.

In their demand letter Univision says that no court has addressed the legality of "precisely" the kind of service offered by DAR.fm. Well of course not the PRECISE service, but darn close. The case is called Cartoon Network v Cablevision. Cablevision wanted to offer a remote DVR service and media companies sued them alleging copyright infringement. (You can read assessment of this critically important case here.) Courts eventually ruled that a centralized recording service did not require a license from media companies and was not a copyright infringement. Cablevision now commercially offers this service under the name DVR Plus. Other companies have begun offering online recording services.

Actually, maybe this part is even better: Many radio stations transmit the names of the songs and bands they’re playing. DAR.fm captures that information and detects song breaks. In other words, if you record a day or so of a music station, you’ve suddenly got a tidy list of songs, identified (and sortable) by title or band. You can listen to individual songs, skip the turkeys and otherwise enjoy your totally free song collection. It’s crazy cool, like a hybrid of iTunes and satellite radio.

Internet entrepreneur Michael Robertson has just launched his own economic stimulus program. He’s going to provide jobs for a lot of lawyers.

That’s because Robertson has created a new online service called DAR.fm, which delivers a new way to listen to Internet radio streams. DAR.fm is a digital recorder for audio streams, capturing your favorite Internet radio shows whenever they’re broadcast so you can listen to them later. It works, it’s wonderful, and it’s very possibly doomed, because the world’s leading music recording companies will probably come after it with every attorney they have.

This offering will allow the homebound, parents with young children, and others who simply want to stay in for the night to choose a new entertainment option that they may value highly....

[On] balance, grant of MPAA's waiver request will provide a benefit to those who have the appropriate equipment and would like to view movies in their homes in an early release window that outweighs the limited impact on consumers with legacy devices....

"This action is an important victory for consumers who will now have far greater access to see recent high definition movies in their homes. And it is a major step forward in the development of new business models by the motion picture industry to respond to growing consumer demand..." (emphasis added)

When asked about the studios' plans late last week, Bob Pisano, the president of the Motion Picture Association of America, said, "I can't tell you that, because I don't know." To comply with antitrust law, he added, "we stay out of business-model decisions."

I leave open the possibility that such a DVR or VCR product or service, operating remotely or locally, digitally or via analog means, could amount to fair dealing under our Copyright Act only for the non-commercial facilitation of end-users' time shifting. As we have seen earlier... it is inconsistent that the VCR is permitted to be sold at a price (in stores) but the [remote] DVR (through advertising revenue) is not, but until the occasion requires, I shall not make any pronouncements on this anomaly.

"The MPAA has submitted no proof that grant of the waiver will serve the public interest at all. To the contrary, what proof exists in the record shows that the 'problem' of a longer window for release of movies to MVPDs than for release on DVDs is a business decision made by MPAA's members. Rather than shed crocodile tears for the poor shut-ins and busy parents who must either subscribe to NETFLIX to get the earlier window or wait a whole thirty days, MPAA's members could simply negotiate a shorter release window."