The Aereo Ruling Is A Disaster For Tech, Because The 'Looks Like Cable' Test Provides No Guidance

from the a-mess,-a-mess,-a-big-fat-mess dept

Following the Aereo ruling in the Supreme Court this week, lots of folks are sifting through the decision and opining on what it all means. To give a brief summary, the general consensus is that the Supreme Court’s “looks like cable” test is so devoid of actual legal standards and/or reasoning that perhaps the “best” result might be the fact that it gives no real guidance to anyone. The Court’s decision rests almost entirely on the fact that Aereo “looked like” something else, totally ignoring the very important technical differences. The most ridiculous part of the ruling was where the majority totally admits that it’s not going to even bother to look inside the black box to see if Aereo actually infringes, but rather will just say that it’s infringement because of the similarity to cable:

Viewed in terms of Congress’ regulatory objectives, why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. They do not render Aereo’s commercial objective any different from that of cable companies. Nor do they significantly alter the viewing experience of Aereo’s subscribers.

That rationale should be scary to anyone who believes in the rule of law. The Supreme Court is flat out saying “we have no interest in opening up the black box to see if it’s infringing, instead, we’re going to look at the inputs and outputs and assume that it must be infringing, because those inputs and outputs sorta kinda match this other system that was infringing.” But that deliberately blocks off what the actual dispute was about: whether or not what’s happening in the black box infringes.

And because of that, lots of other internet services are… suddenly left swimming in the dark. Even if they (as Aereo did) follow the letter of the law to avoid infringing, if the Supreme Court (or another court) suddenly decide that they look like an infringing system because the court puts a black box around the specifics, they can be found infringing too.

Yikes!

Law professor Mark McKenna has a really good analysis of why this “looks like something that infringes” test is such a mess:

It would be one thing if the consequence of this approach were simply to block Aereo from offering its services. That would be a loss to consumers who don’t want to pay $150 a month for cable subscriptions, but at least the damage might be contained. Unfortunately, the problem is bigger than that, for in glossing over technological details, the opinion potentially implicates a wide range of other services. What about Dropbox and other cloud computing services, for example, all of which use their own equipment to retransmit what they receive to their customers, often transmitting many user-specific copies of the same works? How do those avoid liability? Not to worry, says the court, those technologies might be different. Why? Because cable system.

The most obvious way to insulate many of the cloud computing technologies would be to hold, as the dissent suggested, that a party does not infringe when it “does nothing more than operate an automated, user-controlled system.” But that is apparently not the rule, because it would have insulated Aereo from liability, too. Thus, while the court assures us that user control over a system might, in some cases, make a difference, it gives us no guidance as to when that might be true, except to say that it isn’t true here.

And… what that means is there will now be a ton of litigation, as old gatekeepers attack new innovations, testing out every angle of this bizarre “looks like an infringing system” test. Law professor James Grimmelmann, interviewed by Tim Lee at Vox, similarly notes what a mess this will become:

“The court is sending a very clear signal that you can’t design a system to be the functional equivalent of cable,” says James Grimmelmann, a legal scholar at the University of Maryland. “The court also emphasizes very strongly that cloud services are different. But when asked how, it says, ‘They’re just different, trust us.'”

Sure, we now know that if it “looks like a cable system” then it’s not legal. But now get ready for a whole host of “looks like x” lawsuits. Lots of different online services might “look like Grokster.” After all, that’s what Viacom claimed about YouTube. Would YouTube have survived the Viacom lawsuit with this test? Unclear. As Sarah Jeong notes in her write up about the ruling, the really scary part is that we’ll “never know the technologies that could have existed, the services that could have been,” because many won’t even bother trying.

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Companies: aereo

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Comments on “The Aereo Ruling Is A Disaster For Tech, Because The 'Looks Like Cable' Test Provides No Guidance”

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187 Comments
Josh in CharlotteNC (profile) says:

It’s not just a disaster for tech companies, startups, and consumers.

It’s also a disaster for the media companies that won the suit. As with every other victory they have in the courtroom, it’s nothing more than a Pyrrhic one. They’ve been handed another excuse to not innovate or even to offer services based on now mature technology, and instead to let their lawyers run wild.

Until there’s an online video offer equivalent or better than cable at a reasonable price, millions will continue to pirate. Netflix isn’t there yet, and not just entirely because cable is trying to kill them.

Lawsuit won, at cost of millions. Revenue gained, nil. Company that could’ve helped broadcast video reach more people and make more money, destroyed. Other companies that could’ve helped video adapt, never going to be born. Widescale piracy extended. Everyone loses.

Ninja (profile) says:

Re: Re:

And indeed Scalia noted precisely that. What would have happened if the MAFIAA had won their lawsuit against the VCR? The immediate answer would be that they would have killed a huge amount of profits that the VCR itself generated for them. The not so immediate would be the following innovations. The DVD, blu-ray and many other things that grew on this fertile ecosystem the decision let grow.

The evil me is saying that we need tons of decisions as bad or worse up to the point the companies that think they are getting some benefit start being seriously harmed. You know, chaos, destruction. Then sanity and harmony.

Whatever (profile) says:

Re: Re: Re:

And indeed Scalia noted precisely that

Yet he also went on to say he thought it was going to be illegal for other reasons.

It’s also a disaster for the media companies that won the suit. As with every other victory they have in the courtroom, it’s nothing more than a Pyrrhic one. They’ve been handed another excuse to not innovate or even to offer services based on now mature technology, and instead to let their lawyers run wild.

I think that you are making the perfect error here, which is trying to jam old media companies into your new business methods because they suit you better.

You need to ask the more obvious question: With all of the roku boxes out there, with all the other streaming media and download services out there, how come there is nobody really rising the the surface to compete against the existing media companies?

It seems that the only big players aren’t creators, they are “middle ware” types – youtube, google, and yes, Aereo. They are the ones trying to become the new middlemen, that is where the action is at.

Anonymous Coward says:

Re: Re: Re: Re:

It seems that the only big players aren’t creators, they are “middle ware” types – youtube, google, and yes, Aereo.

There are significant difference with these new middlemen compared with the old ones, they do not decide what is published, they do not demand that the copyrights are assigned to them, and they usually offer a better share of the profit to the creators.

John Thacker (profile) says:

Re: Re: Re: Re:

“Yet he also went on to say he thought it was going to be illegal for other reasons.”

Not exactly. He said two things:

1. The secondary question was not addressed, could go other way.
2. The primary question is something that probably the Copyright Act passed in the 1970s ought to have addressed, if it had considered it.

Basically, all nine Justices thought that Aereo was a technological loophole in the law, which violated the spirit of the law. The difference was simply in how the Justices philosophically approach loopholes, when the letter of the law differs from the spirit.

Breyer is a pragmatist. the spirit and intent is what matters: “when read in light of its purpose, the Act is unmistakable… Viewed in terms of Congress’ regulatory objectives, why should any of these technological differences matter?”

Scalia is a textualist, the letter of the law matters: “It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes.”

Josh in CharlotteNC (profile) says:

Re: Re: Re: Re:

how come there is nobody really rising the the surface to compete against the existing media companies?

For exactly the reason we’re talking about. The media companies are famously litigious, and bizarrely even when it is against their own long term interests. They attack anything, anyone, any company even when it increases their markets and revenue. It takes a rare few to try to take them on when there’s plenty of other ways to be a part of the next big startup.

Look at music. Streaming music only became a thing at least 10 years after it was easily achievable from both a technological and infrastructure perspective. And video? Despite its massive success, Netflix still can’t get the content it needs from the media companies and is being attacked by the distribution side (cable and telcos).

I’m not saying the media companies will dissolve overnight. They’ll keep limping along, fighting off everyone who tries to help them. They are leaving massive piles of cash on the table by clinging to their old model.

Mason Wheeler (profile) says:

Re: Re: Re:2 Re:

Then why doesn’t anyone do something about them?

When Viacom filed their ridiculous YouTube lawsuit, why didn’t the folks at Google say “Let’s settle this like businessmen” and initiate a hostile takeover? Forcefully give their corporate culture a few cluefulness upgrades, and the problem would go away.

Why are tech companies fighting media companies, rather than buying them out? That’s always seemed bizarre to me. It’s not like they don’t have the money…

John Fenderson (profile) says:

Re: Re: Re:3 Re:

“Why are tech companies fighting media companies, rather than buying them out? That’s always seemed bizarre to me. It’s not like they don’t have the money…”

It’s not a matter of having the money or not, it’s a matter of knowing what business you’re in. One of the worst mistakes that a company can make is to expand beyond the scope of its business. Occasionally it works (and when it does, it can work very well) but usually it’s a recipe for disaster, because it causes a large distraction from your core business.

jupiterkansas (profile) says:

Re: Re: Re:6 Re:

Yep, they have nothing to do with each other. An while movies make money, from a corporate point of view it’s an incredibly risky businesses. The audience is fickle and you can’t determine how much your investments will profit. Art is lousy business. You’re better off making commercials (which is essentially what major Hollywood output is).

Mason Wheeler (profile) says:

Re: Re: Re:6 Re:

The problem with that is, videogame adaptations (of movies or any other medium, really,) almost universally suck, just like movie versions of video games. (Doom, Super Mario Bros, Mortal Kombat, etc…) For whatever reason, they just don’t translate well.

The last really good counterexample I can think of personally is Betrayal at Krondor, which was an awesome game, but to give you an idea of its age, it ran on DOS.

I mentioned this to Brandon Sanderson, author of (among other things) the Mistborn novels, at a signing event when he talked about a Mistborn video game in the works, and he said “Arkham Asylum.” I’ve never played it, but I’ve heard it’s pretty good. Even so, the general consensus is that high-quality video game adaptations of other media is a very small exception to a very strongly applicable rule. (He also said that he was well aware of the problem and he was working with the creators to ensure that the game they came up with did not suck.)

In the other direction, I think the best movie adaptation of a video game that I’ve seen was Prince of Persia… and that’s not really saying much. 😛

jupiterkansas (profile) says:

Re: Re: Re:8 Re:

Mason’s talking about movies that Hollywood made based on games. Of course they sucked. Hollywood’s not in the gaming business and all of their decisions are dictated by marketing – and not as a way to boost game sales.

Some videogames make more money than major Hollywood films. If the movies are developed in tandem by the tech companies, the movies will be considered nothing more than giant commercials for the game. It’s the same way now that the Star Wars movies are just commericals for all the toys and merchandise. And as Star Wars and Transformers shows, quality doesn’t really matter.

When the tech companies start making the movies themselves things might change.

Anonymous Coward says:

Re: Re: Re:3 Re:

The biggest tech companies are in the data distribution business, they are not in the gate keeper/publisher business. Allowing anybody to put ‘content’ on your service allows a lot of content to arrive on the service. Acting as a publisher requires lawyers, contracts etc. and results in little content to be added in any year. Also, while the DMCA imposes some burden, being a gatekeeper publisher opens up all sorts of risks, as the safe harbor goes out the window, hence all the layers and time vetting content before publishing it.

Candid Cameron says:

Re: Re: Re:2 Re:

You make a really good point, Josh. The one sure fire reason I can think of for why they keep doing this is old age. It’s a well known fact that the older people get, the more set in their ways they become.

It’s even worse regarding technology because the digital revolution is still fairly young and the old guard, made up mostly of people who grew up during the pre-digital age and thus view it as black magic, are still in power at the top. Just look at some of the inane comments that have been coming from Village Roadshow co-CEO Graham Burke lately for an example of just how out of touch the older generation can be (he’s 71 I believe).

This is what has me wondering about the respective ages of each of the judges in the Aereo case. Surely it must be the reason why many of them weren’t interested in digging deeper, if I’m understanding this article correctly. They know they wouldn’t understand half of it and so don’t wish to even try. This too is typical behavior for someone whom is set in their ways and doesn’t wish to change. Does anyone know the ages of the judges, or where to find that information out? It would be interesting to see if my hypothesis is true.

Anonymous Coward says:

Re: Re: Re: Re:

…trying to jam old media companies into your new business methods because they suit you better.

Tell me about it. All this whining about the Aero decision reminds me of all those pathetic hominids whining about the ruling against bipedal locomotion in Citizens of the Woodlands v. Sahelanthropus tchadensis.

What idiot can’t understand that walking upright creates an unfair competitive advantage?

PaulT (profile) says:

Re: Re: Re:

“The immediate answer would be that they would have killed a huge amount of profits that the VCR itself generated for them.”

I’d question how immediate that really was. The basic market had already been created for them by the time the decision came in, but they were so scared of cannibalising theatrical and other sales that they spent much of the decade losing sales by hedging their bets (VHS sales only available for $100+, windows for years between theatrical and home releases).

It was only when they had some massive hits on video that had previously underperformed theatrically that they started to treat the market right by lowering sales prices, shortening windows, etc. Then, they started to really take advantage by releasing some works direct to video, releasing sets of TV shows, etc, and ultimately double/triple dipping by releasing movies in different formats, with additional DVD features and so on.

But that’s really the problem faced now. Go back to Jack Valenti when he was making the infamously idiotic “Boston Strangler” comparison and he wouldn’t be able to conceive of movies being successful on VHS as well as theatrically, let alone the multiple bites of the cherry it would ultimately enable – and things like Netflix would be pure science fiction. He would be looking to protect his company’s existing business model, not help them massively expand into the future.

Sadly, just as losing the lawsuit has unforeseen positive consequences for the movie industry, this kind of decision has unforeseen negative consequences for the consumer. Thus, ultimately, negative consequences for the studio as they will lose money, even if it’s money they don’t know they can access yet.

Rich Kulawiec (profile) says:

Re: Re:

You’re right, and it’s yet worse than that: many of us are simply losing interest even when we can download the content for free.

And that is the beginning of the end for cable monopolies and Hollywood and television networks. When viewers are so disinterested that they won’t watch content, even when they can do so at a time of their choosing, even when they can do so without commercials, even when they can do so on the device of their choosing…then they’ve lost their audience. I’m already there. The only thing I watch any more is (live) sports…and I’m finding that even that is nearly as enjoyable from a radio broadcast, provided the commentators are any good.

These companies are systematically cutting themselves off from their core constituency via litigation, pricing, restrictions, and availability. That can only end one way.

Josh in CharlotteNC (profile) says:

Re: Re: Re:

Oh, I’ve been there for awhile now. Most of my entertainment time is interactive (gaming). I couldn’t care less about sports. Any informational thing like news or weather I get online. When there’s a show that looks good enough, I’ll download and binge watch a season over the course of a week or two. Since the few places you can actually download an entire season at once are horrendously expensive, there’s no reasonable alternative to piracy.

Media companies, I’m more than willing to give you money for quality content. I pay $10 a month for Spotify. I’ll pay up to $25 a month for streaming video if the conditions are right.

Edgar Allen (profile) says:

Re: still trying to understand how like a cable company

The Court already said that it infringed because of simultaneous viewing, Scalia pointed out that a mandatory delay (how long is left unspecified) would get around this decision. (Litigation to begin soon no doubt over whether an open WiFI offers enough simultaneous connections to infringe. )

How many simultaneous views start infringing is also left unsaid. (Lots more litigation around that)

Which brings up another question, TCP allows for 16 receivers from a transmitter and can be one for each packet, “simultaneous” then is not on a microsecond scale. How close do packets need to be in time to trigger this decision ? (Oh, this decision will send lawyers’ grandkids through college.)

More disastrous is the patent world, if everything that does the same job infringes then most patent holders can claim that all implementations of their idea infringe. Patent cases alone will clog the system for years trying to get this “looks close enough regardless of details” standard in their arsenal as well.

Patent Trolls are are brake on innovation, this decision will send them into a frenzy of suits trying to win a multi billion dollar lottery and they may even halt progress for a while.

Anon says:

But...

IIRC the court specifically said that they had decided that cable TV was not a “public performance” needing a license – and congress, decades ago, had specifically changed that so that cable DID need to pay and license. Therefore anything that does the same as cable – repeat broadcast signals to users – is essentially a cable system, and congress meant for them to be regulated and pay license fees just like cable. The fact that their wires are IP not UHF is irrelevant – it still looks and smells like cable and is just as squishy.

They seemed to specifically single out cable-like services for this treatment. Whether this logic applies to any other service depends on whether it was also addressed specifically by laws. They were explicit in the decision, that congress intended to regulate and require licensing for providing the equivalent of cable service, and the court will follow the obvious intent of congress.

I find this an interesting Solomon-like decision much like their AHC decision; Congress is quite capable of deciding these issues, if they won’t do so, don’t expect the court to jump in and decide for them, especially if it runs counter to the intent of earlier laws.

Bergman (profile) says:

Re: But...

Aereo may look like cable, but it wasn’t cable. The designers of the Aereo system tied themselves in knots to make their product fit PRECISELY within the law. And along comes a court that rules that obeying the law doesn’t matter if you even look like you might not be.

Did you get that? It doesn’t matter how law-abiding you are, once you get accused you get judged on appearances alone — facts are irrelevant.

I’ve lived in 8 different places in the past 20 years, all of them rented. At no time have I ever owned the TV antenna on the roof. I’ve just been able to connect to someone else’s antenna to watch local TV.

Apparently, now that using someone else’s antenna is now a public performance, providing broadcast TV to tenants will now be too expensive for landlords to afford.

There is no functional difference between Aereo and a landlord-owned roof antenna on an apartment building.

Anonymous Coward says:

“The court is sending a very clear signal that you can’t design a system to be the functional equivalent of cable,” says James Grimmelmann, a legal scholar at the University of Maryland.

You can design a system to be the functional equivalent of cable- you just have to pay the retrans fee. It’s not that hard.

Baron von Robber says:

Re: Re: Re: Re:

I’ve posted this before but nobody has dealt with it. I’m curious where SCOTUS sees the issue…

If you answer ‘No’ to ANY of the following, please state why.

1) Is it ok for me to set up an antenna view broadcast television at my home?

2) Is it ok for me to pay somebody else to set up an antenna view broadcast television at my home?

3) Is it ok for me to setup a recording device to copy a broadcast that I can later watch on my television at home?

4) Is it ok for me to pay somebody else to setup a recording device to copy a broadcast that I can later watch on my television at home?

5) Is it ok for me to pay somebody to do all of the following above and move said equipment offsite and feed JUST TO ME what I wanted recorded to my television at my home?

6) Is it ok for me to pay somebody to lease all of the equipment doing all of the above?

If you didn’t answer ‘No’ to any of the above, Aereo did nothing wrong and did not break any copyright laws.

Whatever (profile) says:

Re: Re: Re:2 Re:

1) it’s not at your home.
2) you aren’t paying for the setup, you are paying for the content. You wouldn’t want it without the content.
3) Sure, knock yourself out, provided you control it, it’s in your possession.
4) see number 3. Make sure it’s in your home.
5) generally no, unless they are paying for the rights to do so.
6) you wouldn’t lease any of it if there was no content.

See, each one of your arguments is good if you don’t actually piece them together into one solid thing. There weren’t selling you antenna space, they were selling you content delivery – which makes them a cable company. OTA delivered to you as a business. Not hard to figure out.

LAB (profile) says:

Re: Re: Re:2 Re:

1) no 2) no 3)no 4),5),6) a private citizen, no. Apparently, to hire a commercial entity to do this for you, they are indeed rebroadcasting content regardless if there is a cable or if it is over the internet. You are a customer and they are a business functioning as a cable company.
I can give a person a ride and charge them a fee as a private citizen. If I do this same service as a business there are regulatory schemes I must follow, I must be a registered business, be registered with the state carry insurance, etc because I am no longer a private citizen doing this but a cabbie running a commercial business.

Baron von Robber says:

Re: Re: Re:5 Re:

Ok, so at 4) Is it ok for me to pay somebody to setup a recording device at my home.

So exactly why ok for a private citizen and not a commercial entity?

I would think if somebody provides a service that I can legally do myself but either I’m too lazy, too rich or disabled to myself, I then have a commercial entity do because I would like somebody with professional experience to do.

Anonymous Coward says:

Re: Re: Re:9 Re:

They didn’t invalidate Cablevision even if their ruling contradicts it. Length of a cord still doesn’t matter. Just don’t look like cable.

Part of me really wishes Aereo would try to use the compulsory license just so we can watch the Networks then turn around and make contradictory arguments that violate the SCOTUS decision that Aereo is a cable company by pointing out every minor detail about how Aereo is different than cable in an attempt to get out of providing the license.

Anonymous Coward says:

Re: Re: Re:10 Re:

Cablevision is an actual cable company. They don’t just look like cable, they are cable. They are saying it’s OK for cable to rent out DVR services but not OK for people to rent out digital TV antennas.

The decision seems to be that because cable has to pay for one antenna shared by all their customers that everyone has to pay even if they each use their own antenna because what you actually do within the law isn’t relevant, appearances are and it appears to be the same thing as cable.

One antenna per customer featuring live broadcast TV is a public performance (if you look like cable), but one DVR per customer recording TV is not (maybe only if you’re actually cable?).

Josh in CharlotteNC (profile) says:

Re: Re: Re: Re:

What is your problem with one company building a service on something (monetizing) given away for free by another company?

If I give away a car, I can’t demand a cut of gas station revenue.

Is it greed? Is it some weird loss aversion thing? I really want to know so I can give you some reasoning that just might educate you and show how horribly wrong you are.

Zonker says:

Re: Re: Re: Re:

Aereo wasn’t monetizing content, they were monetizing (renting) the equipment used to receive content. That was the service people were willing to pay for, especially in areas underserved by (out of range/high interference of) OTA broadcasts.

The networks basically got a ruling that limits their broadcast audience to only those who can get a quality signal on their own property, except that technically that digital receiver you’re required to use now looks like cable and you’re receiving the same signal at the same time as your neighbor, so according to this ruling everyone on digital TV (and there is no analog anymore) should have to pay the rebroadcast fee.

Be prepared to start paying for broadcast TV in the US, even if you’re not a cable subscriber.

Anonymous Coward says:

Re: Re: Re:2 Re:

eh, what?

Antennas, by definition, are used to pick up a signal that is (hopefully) nearby.

Aereo used their antennas to collect that nearby signal and then charged people to retransmit it. But they didn’t pay retransmission fees. Their moronic business model was quickly declared illegal by no less than the Supreme Court of the United States.

This isn’t difficult to understand. Maybe ask your helper to explain it to you.

Zonker says:

Re: Re: Re:3 Re:

It really isn’t difficult to understand: it’s a rental. You rent the equipment for your personal use. Just like Rent-A-Center doesn’t charge you to “retransmit” anything on the TV’s they rent out: they charge rent for the TV whether it’s on or off, functional or not, connected to your playstation or your neighbor’s cable. How you use it is your business and your liability, not theirs.

The only difference between a rental and a purchase is who owns the equipment. Landlords have rented rooftop antennas to their tenants for decades, but under this ruling they would have to pay a retransmission fee too (despite the law specifically allowing landlords to do so) now that it “looks like cable”. And since landlords typically only rent the use of one antenna to all their tenants they would be more like cable than Aereo who rented one antenna per customer to stay within the law as written. The court said specifically that following the law as written doesn’t matter as long as you look like cable because Congress must have intended it that way(???).

If you don’t know how a rental works then you need to grow up and move out of the basement. Rental of equipment is not the same as a subscription to content. Hulu Plus looks like a remote TV antenna connected to a DVR with a large selection of prerecorded shows, but it’s really a subscription to content streamed over the internet. What it looks like vs. what it really is does matter in the real world.

appleinaz (profile) says:

Re: Re: Re:4 Rental

With your insults, you make it hard to say good point but I’ll say it – good point. As far as it goes. you answered your own question about landlords with your parenthetical aside “(despite the law *specifically’ allowing landlords to do so).” See there’s a law for them, it’s been made. Hulu Plus is another bad example because I think you know who owns them. I had read further that Aereo also transmitted Bloomberg, which was not just re-broadcast. I do not know whether they had the permission for that.

Aereo set up the antennas the way they did for a specific purpose and it was not to conform to the law. You’re being willfully obtuse if you cannot admit that.

I have no love for large companies abusing powers. Quite the contrary. But I also have no love for small companies doing it either, playing the “I’m tiny and insignificant, what damage can I do card.”

The ruling is sound.

Gwiz (profile) says:

Re: Re: Re:5 Rental

Aereo set up the antennas the way they did for a specific purpose and it was not to conform to the law.

Ummm. That’s 100% wrong. Aereo purposely set up their system to conform with existing statutes and case law (ie: engineered by lawyers, instead of technicians).

SCOTUS punted on actually looking at the technology to determine if it actually broke any laws and ruled on the premise that Aereo “looked” too much like a cable company instead.

steell (profile) says:

Re: Re: Re: Re:

What is Aereo “Monetizing”? It appears to be the transportation of the signal to your device, not the signal itself. And that’s much the same way my local gas company works, it charges for the transportation of the gas, and not the gas itself. It sells the gas to consumers for the exact price it paid for the gas, much like Aereo provides the signal to consumers for the same price it paid for the signal.

“Monetize” is not the end-all be-all that you think it is.

Gwiz (profile) says:

Re: Re: Re: Re:

Because Aereo monetizes it for themselves. Why do they get a pass?

For the exact same reason that television and antenna manufacturers get a pass. Aereo is/was simply a tool to view OTA television with.

Aren’t TV antenna manufactures also monetizing OTA signals for themselves? It’s the reason TV antenna manufacturers exist in the first place, isn’t it?

Anonymous Coward says:

Re: Re: Re:2 Re:

TV antenna manufacturers do not supply a service like Aereo did. You buy a product from the manufacturer and set it up at home for private home viewing. The signal gets picked up directly from the source and is used or recorded privately. Aereo intercepts that signal and sells a service off that signal similar to what cable companies do. They take the tv signal and package it up to pipe out to paying customers. The only difference between cable and Aereo worked was how they got the source piped to them. Which is why it was “cable” like.

Gwiz (profile) says:

Re: Re: Re:3 Re:

TV antenna manufacturers do not supply a service like Aereo did. You buy a product from the manufacturer and set it up at home for private home viewing.

Or you can use a service like “Rent-to-own” who comes to your house, sets up the exact same system and rents it to you.

The signal gets picked up directly from the source and is used or recorded privately.

Which is exactly what Aereo did. They purposely kept your signal separate from anyone elses. It was also “private”.

Aereo intercepts that signal and sells a service off that signal similar to what cable companies do. They take the tv signal and package it up to pipe out to paying customers. The only difference between cable and Aereo worked was how they got the source piped to them. Which is why it was “cable” like.

No, you are wrong, they didn’t “package” anything, they purposely kept your transmission separate and completely under the user’s control, so it wouldn’t be any different than a legal setup in someone’s house, except for being located somewhere else. Only difference is where the equipment is located.

Gwiz (profile) says:

Re: Re: Re:7 Re:

Who rents out antennas?

Hmm. I know for a fact that it was pretty common practice for rent-to-own places to include antennas with TV’s in the 80’s, especially in rural areas. But I guess not so much anymore. All I get when searching “rent” and “antenna” these days is stories about Aereo. I even tried the Wayback Machine without much luck.

Anonymous Coward says:

Re: Re: Re:8 Re:

Say again?

No one is stopping you from renting an antenna.

If you wish to rent an antenna in another city, it isn’t going to do you much good unless someone transmits that signal to you.

Which Aereo does.

Oh but oops they didn’t pay the retransmission fee.

Intentional stupidity strikes again. Oh well.

Zonker says:

Re: Re: Re:9 Re:

If you wish to rent an antenna in another city, it isn’t going to do you much good unless your cord is long enough.

Aereo provides the equipment and the internet provides the cord. The broadcaster is the one who transmitted the signal to the antenna which is connected to your TV by a very long cord.

Your antenna performs no differently if located two feet away or two thousand miles away. If the antenna is retransmitting TV signals on your cord then why aren’t you paying your retransmission fees every time you use a TV antenna?

Mike Masnick (profile) says:

Re: Re:

You can design a system to be the functional equivalent of cable- you just have to pay the retrans fee. It’s not that hard.

Which is exactly what ivi did… and they got sued out of existence for it. So, yeah, it is kinda hard.

https://www.techdirt.com/articles/20110222/11395313211/court-not-impressed-with-ivis-legal-loopholes-shoots-online-tv-broadcaster-down.shtml

Want to try again?

Anonymous Coward says:

Re: Re: Re:

According to this article, they did not.

The Seattle-based ivi launched a service in 2010 offering packages of TV signals from broadcasters to ivi subscribers — without compensating broadcasters for the retransmissions. Ivi was charging its own customers $4.99 a month for the streaming service while refusing to pay the shows’ owners.

http://www.thewrap.com/tv/column-post/ivi-tv-loses-bid-get-back-online-broadcasting-business-53606/

Anonymous Coward says:

Re: Re: Re: Re:

http://www.thewrap.com/tv/article/facing-copyright-challenge-ivi-tv-sues-networks-first-21025/

There are two sets of fees. One under the Copyright Act and another under the Federal Communications Act. Since the Internet is regulated under Title I, they weren’t subject to the later. They were paying the royalties to the network under the Copyright Act’s compulsory licensing.

appleinaz (profile) says:

Re: Re: Re:rights holder

For the purpose of this comment I will assume you were not being sarcastic. “but expecting payments to rights holders is bend the pale.”

There’s a lot of comments I wanted to respond to. This one is where I finally had enough. If someone has “rights” then it is that person’s choice to cede them, temporarily. Rights are not maybes, they are rights. What’s the point of being a holder of copyright if it is “beyond the pale” for people to respect them?

On a slight tangent, but the overall point of all this Aereo discussion comes down to a lot of people do not agree with the copyright law; because the merits of the SCOTUS decision are clear and correct.

MikeW_CA (profile) says:

Bring back Must Carry

There is a simple solution the Aereo problem. Regulate the cable distribution of over-the-air TV like it used to be regulated. If a station broadcasts in the clear over the public airwaves, you should be able to (and may be required to, under some circumstances) deliver it unaltered over cable (and internet) without payment. Either that, or the FCC should be charging fairly high rent for the use of TV Broadcast channels.

jupiterkansas (profile) says:

They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. They do not render Aereo’s commercial objective any different from that of cable companies. Nor do they significantly alter the viewing experience of Aereo’s subscribers.

This is completely wrong. Aereo delivers the content to screens that otherwise can’t receive broadcast signals. That’s a significantly altered viewing experience. Cable never did that.

Zonker says:

Re: Re: Re:

Aereo is renting you an antenna for your exclusive use to receive free broadcast signals you are too far away to receive. That is nothing like paying a cable company $120/month for hundreds of non-broadcast TV channels, most of which you never watch. The Aereo ruling combined with the compulsory licensing of broadcast TV for cable under the 1976 law that means that you now are now required to pay a TV license fee to legally receive any broadcast TV in the US. Bye bye free broadcast TV.

David Cortright says:

Re: Re: Re:2 If you're too far away, you must pay

So by that logic, maybe the broadcasters should cut the strength of their “broadcast” to just enough where they can legally claim they are still benefitting the public. Or they could broadcast at the same strength, but out in the middle of nowhere where few people are there to receive it. That way they force as many people as possible to pay for their service.

DannyB (profile) says:

The solution

The innovators need to produce their own content.

What happened in music? A trickle of artists decided to skip the major label deal and made it big anyway.

In video? Netflix, now Amazon to produce content. A trickle at first.

Another thing is that the RIAA and MPAA love to destroy dreams if they arbitrarily believe that your idea won’t make money because it doesn’t fit their formula. The innovators might not have that shortsightedness. They may offer a real alternative for pent up demand for something different than sequels of remakes of sequels of fifty year old TV programs. And least objectionable programming. How about something that doesn’t appeal to everyone, but to some has deep even fanatical appeal.

Want to bet the innovators in tech can work with innovators in content and one day Hollywood will wake up and see that the world has changed, and then they will suddenly try to catch up?

Josh in CharlotteNC (profile) says:

Re: Re: Re:3 The solution

Maybe instead of throwing insults, you could check your post is understandable. You left out a word or two that makes it unclear what you were asking.

If you meant to say that cable retrans fees are computed by how often a subscriber watches a channel, then you’re flat out wrong. At most, the cable company could only know that from two-way set top boxes and would significantly undercount cable ready TVs without such.

If you meant to derogatorily imply that it was impossible, then you fundamentally don’t understand how Aereo worked and are just spouting bullshit (no surpise there, how’s that for an insult).

Assuming Aereo survives, there’s no reason they couldn’t easily keep logs of what content was watched by their collective user base and make payments off that. Unless you’re admitting that retrans fees are nothing more than a Mafia-like shakedown fee, there’s nothing unreasonable about only paying the fee for the content that is actually retransmitted.

Josh in CharlotteNC (profile) says:

Re: Re: Re:5 The solution

Exactly my point. Nor did the cable companies have the ability to transmit to only some customers. Retransmission fees were based entirely around the idea that they were rebroadcasting the entire channel to their entire customer base 24/7.

Even if you assume that Aereo is like a cable system, retransmission fees still don’t make any sense.

Anonymous Coward says:

I understand why there is are so many junk channels on cable, along with the bundling. They are not really intended to be viewed, but rather allow the cable companies to keep some of their profit, as otherwise the major TV companies would suck all the profits out of the cable business, claiming it was due to their content. Unfortunately this is now killing the cable business.

steell (profile) says:

Re: Re:

You are determined that Aereo violated the Copyright Act regardless of the evidence? You do know that making up your own definitions does nothing for discourse and just muddies the conversation further? For instance, if you use the accepted definition for “Broadcast”, then your entire post becomes meaningless. Just like your last sentence “Aereo is violating copyright laws the same way that torrent sites violate the copyright laws.” Since some torrent sites are simply trackers and contain no copyrighted material belonging to others, then Aereo doesn’t violate Copyright either.
Simply saying it does is meaningless unless you’re Kim what’s his name, the current Dictator of North Korea, and even then it would only apply within the borders of North Korea.

Go read the latest Copyright Act then get back to me.

Anonymous Coward says:

Another option...

If several companies partnered together to recreate the Aereo experience where none of them individually did enough to “look like cable” it would make for an interesting situation. Picture a single company that leases an antenna, designed to work with another company that leases cloud storage space that works with another company’s app that streams from the cloud. No one of these companies could individually be described as offering a service that “looks like cable” however, working together they could duplicate the experience.

amoshias (profile) says:

I just found this site about a month ago...

and I’ve gotta say, I generally love it – it hits right in my wheelhouse, the intersection of law and tech. But there are all too many “sky is falling” articles like this one. Aereo is a bad decision, no disagreement there – but in the long run it’s going to be a decision quickly forgotten. This isn’t the first bad Supreme Court decision. It’s not the first one that has seemed to open a novel line of legal attack (“looks like cable.”) Despite the Court getting it wrong frequently, the sky has not fallen, creators continue to create.

Disruptive technology, by its nature, routes around decisions like this. Aereo on its face – its ridiculous Rube Goldberg tech solution – was such an attempt. Unfortunately, despite being a cool hack, I would bet that – to many members of the Court – what Aereo was doing looked awfully like a bad actor attempting to get around legal requirements through technology that didn’t exist at the time. I may not agree with the court’s decision, but it’s definitely one where I can at least see what animates it.

In the end, nobody – except maybe a few district court judges, let’s not underestimate people 🙂 – will interpret this case in such a way as to bring about the end of technical innovation in America. And Techdirt is less valuable to me for this kind of sky is falling rhetoric.

Michael (profile) says:

Re: I just found this site about a month ago...

Disruptive technology, by its nature, routes around decisions like this

That is really the issue with this particular ruling. This is the first ruling I am aware of that prevents the behavior you are talking about. It has always been the technical details (the length of the cable does not matter for a DVR) that have allowed innovative technology to route around bad law. This ruling addresses it by specifically saying that routing around the law via technology is not allowed.

Whatever (profile) says:

The Supreme Court is flat out saying “we have no interest in opening up the black box to see if it’s infringing

It’s not a lack of interest, rather it’s a lack of need. The technicalities of the system Aereo created was one to try to get around the existing laws and to stretch existing judgements to their favor. SCOTUS realized (by 6 to 3, I may point out) that the real answer was found by standing back a few feet and watching the how things worked as a whole. Taken as a whole, Aereo is just another cable company, albeit one that doesn’t pay for it’s content (seems to be a familiar refrain in all these new fangled business models).

You have to consider the alternatives. Would you consider IPtv to be cable or not cable? How about sat TV? Aereo seems pretty much right in the mix with these companies, taking OTA broadcasts, and re transmitting them to end subscribers for a fee. Seems like a cable company to me.

In the end, the judgement was 6-3, and even Scalia in dissent seemed pretty much ready to call them out in other areas. This isn’t just a win for broadcasters, it’s a big one with little space for doubt.

John Thacker (profile) says:

Re: Re:

Lack of need according to Breyer’s judicial philosophy, yes. He is an extreme pragmatist, just as Scalia is an extreme textualist. It’s very appropriate that they were the authors here.

All of us have times where we absolutely rely on being inside the letter of the law, in order to avoid out of control prosecutors, cops, or judges with a grudge going after us. We want the law to be predictable and clear; we want to be able to read the law and rely on what it says rather than the whims of judges. But, all of us have times where we get frustrated at people who rely on clever lawyers and legal loopholes to avoid what seems to be the clear spirit of the law.

Both judicial philosophies have weaknesses, and few of us are as consistent as Breyer or Scalia. Instead, most of us change our opinion depending on the particular issue at hand in the case.

Contrast Breyer: “when read in light of its purpose, the Act is unmistakable… Viewed in terms of Congress’ regulatory objectives, why should any of these technological differences matter?”

with Scalia: “It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes.”

Very little difference on the facts between the justices. This was a technological loophole perhaps following the letter of the law but very likely contrary to the spirit of the law. The question was what matters more.

JEDIDIAH says:

Re: Which way is the wind blowing today.

The law needs to be predictable or corruption will run rampant and capitalism in general will collapse as no one will want to ever do anything lest their work get stolen from them by some entrenched oligarch.

THAT is the problem with making up sh*t as you go along.

Scalia’s approach has it’s problems but it’s at least safe from the “which way is the wind blowing today” problem.

“You followed the law very diligently but I am sorry I have to punish you anyways. I will be taking your house and your children now.”

Tice with a J (profile) says:

Re: Re:

SCOTUS realized (by 6 to 3, I may point out) that the real answer was found by standing back a few feet and watching the how things worked as a whole.

Alright then, let’s step back a few feet and watch how things work as a whole.

The First Amendment specifies that Congress cannot limit freedom of speech or freedom of the press.

Copyright law prevents me from saying or printing certain things without permission, therefore it limits my freedom of speech and press.

Therefore, copyright law is unconstitutional.

You’re right, Whatever. Stepping back and looking at results really does help us make the right decisions. But are you wise enough to accept the results of your own logic?

Tice with a J (profile) says:

Re: Re: Re: Re:

My argument is that the Supreme Court made the wrong decision, both against Aereo and in Eldred & Golan. I call myself a “Free Culture fanatic” because I don’t see any way to reconcile copyright with free expression. The law, as it is written and interpreted, is not to my liking, so I’m trying to change the law by publicly pointing out the injustice in it.

Anonymous Coward says:

Re: Re: Re:2 Re:

My argument is that the Supreme Court made the wrong decision, both against Aereo and in Eldred & Golan. I call myself a “Free Culture fanatic” because I don’t see any way to reconcile copyright with free expression. The law, as it is written and interpreted, is not to my liking, so I’m trying to change the law by publicly pointing out the injustice in it.

Gotcha. You were making a normative argument about what you think the law should be, not a description of the actual law. I think the two are irreconcilable only if you think the First Amendment is absolute. That’s never been the law. For example, treasonous speech has never been protected. And as much as copyright is expanding to new subject matter, I think it’s important to recognize that the First Amendment is as well. For example, SCOTUS held in the early 1900s that movies weren’t protected speech, but that holding was reversed in the mid-1900s. The Court doesn’t take an absolutist approach to First Amendment claims against speech restrictions. It instead does a balancing of interests. The way it reconciled things in Eldred was by looking at copyright’s internal safety valves, fair use and the idea/expression distinction.

Tice with a J (profile) says:

Re: Re: Re:3 Re:

The “safety valves” are failing. “Fair use” has nearly been defined out of existence and negated by DRM, the “idea/expression dichotomy” is impossible to define (leaving it open to massive abuse), the public domain has been continuously shrunk (sometimes retroactively!) and the penalties for disobeying have grown. Meanwhile, the resources used to police copyright have massively expanded. The more we need safety valves, the less they work.

The only principled exceptions to free expression are against threats and against lies. Exceptions for the sake of profit are only good for protectionism.

Whatever (profile) says:

Re: Re: Re:

Some otherwise fairly wise poeple have tried your argument, and failed very completely. The basic idea is that the 1st Amendment isn’t an absolute, as some types of speech are not protected. Also, your right to free speech co-exists with the rights of others, and all of those other pesky amendments.

The last learned fellow to try this argument (a local hero on Techdirt) pretty much got laughed out of court. It’s a non-starter. So your understanding of copyright in the legal sense is impaired until you get past this basic point.

Whatever (profile) says:

Re: Re: Re:2 Re:

copyright cannot coexist with free speech

Of course it can. The law isn’t all one thing or all something else. It’s a collective understanding that the rules aren’t just about you and you alone, but rather your place within a society of people just like you. It’s the nature of the game. Things work when there is a space for everyone, not just yourself.

Anonymous Coward says:

This is the land of Chicken Little Masnick and his court of sky-is-falling sycophants. If you think the response to the Aereo decision is overly dramatic; you should’ve heard the dire predictions of “massive numbers of people being disconnected from the internet” when six strikes was inaugurated.

Gwiz (profile) says:

Re: Re:

This is the land of Chicken Little Masnick and his court of sky-is-falling sycophants. If you think the response to the Aereo decision is overly dramatic….

I’m sorry what were you saying? I was too busy watching the sky:

https://www.techdirt.com/articles/20140626/18375827694/aereo-fallout-begins-fox-uses-ruling-to-attack-dishs-mobile-streaming-service.shtml

PaulT (profile) says:

Re: Re: Re: Re:

“hysterics” = pointing out facts in your mind?

It’s simple truth. People pointed out unintended consequences that might happen, and Aereo’s corpse hasn’t even started to cool before your beloved corporations started to carry them out. There may be hope that the consequences aren’t as bad as people have feared, but it’s not looking good.

But hey, carry on with the lies and name-calling, that always helps people see your point of view.

LAB (profile) says:

If it looks like a duck and walks like a duck then it is a cable company that rebroadcasts content without licensing. I find it interesting that if the design of the service performed is that of a cable company then the technology is simply irrelevant. This decision really falls in line with Grokster in that the purpose of the business is what is being evaluated not how it is technologically executed. And I do not believe the purpose of a service like Dropbox is similar to that of a cable company.

steell (profile) says:

Re: Re:

Hmm, it’s the purpose of a business that is the determining factor as to it’s legality? I start a business providing security for you and your family. That’s acceptable, right? Even though I do so by killing everyone within a two mile radius? I mean my purpose is legal so my actions to achieve that purpose must be legal, at least to you.

That pretty simply morphs into “Legality depends upon the beholder”. And that is not a road I want to see this Country go down.

Josh in CharlotteNC (profile) says:

Re: Re:

And I do not believe the purpose of a service like Dropbox is similar to that of a cable company.

What objective test can be made based on this ruling that supports your belief?

Say someone buys up some of Aereo’s equipment – the antennas. They allow someone to specifically rent the antenna, and a connected server where they can configure the antenna, but do not provide any streaming service. A client does that, then installs other software on their server to upload things to Dropbox. The user then later streams that content from Dropbox.

The end result is the same as Aereo. Who is the duck here? The antenna provider? Dropbox? The software creator?

If none of those 3 are doing anything wrong, then how could Aereo doing everything itself be wrong?

LAB (profile) says:

Re: Re: Re:

purpose of Aereo. Transfer broadcast network content over the internet. Function= Cable company. In your scenario, end result is the same using two different commercial entities that would be hard to describe their commercial purpose is transferring broadcast content over the internet. Therefore commercial purpose/function is not as a cable company.

Anonymous Coward says:

Does is make sense for Aereo to just pay retrans fee?

I’m curious how paying a retrans fee would affect Aereo’s pricing. Even if it forced prices up to the level of basic cable, it seems the additional value added from internet delivery would make it a desirable option for some people. Of course, this depends on whether the broadcasters would even grant a retrans license to an online “cable company”. But if it’s mandatory per the 1976 law, could they refuse?

Anonymous Coward says:

Re: Does is make sense for Aereo to just pay retrans fee?

That’s a good point but it gets a little sticky. As long as the stations are local, the licenses are compulsory and cable companies are required to carry all of them. Since Aereo doesn’t actually broadcast the channels like regular cable, it’s technically only carrying the one being watched at that time. It is required to carry all of them. Also since it is routed over the internet, the recipient technically could be anywhere in world at the time receiving a transmission that is not local to his current location.

Sure the technical details don’t seem to matter to determine whether Aereo is a cable company or not NOW, but they sure as hell would had Aereo decided they wanted to try to use the compulsory license. You can bet your ass that the Networks would be arguing that Aereo wasn’t a cable company then and therefore they wouldn’t be subject to providing the compulsory licensing.

Anonymous Coward says:

Re: Re: Does is make sense for Aereo to just pay retrans fee?

“You can bet your ass that the Networks would be arguing that Aereo wasn’t a cable company then and therefore they wouldn’t be subject to providing the compulsory licensing.”

I wonder if the SCOTUS decision has a silver lining. By deciding that Aereo is, in effect, a duck (looks like, walks like), does this decision actually enable online cable companies? If I had the ability to watch, on demand, anywhere, whatever my local stations had already broadcast, I’d subscribe to that service in a heartbeat. Well, assuming reasonable pricing, of course.

Anonymous Coward says:

Re: Re: Re:2 Does is make sense for Aereo to just pay retrans fee?

Which made sense when Aereo’s business model was viewed by broadcasters as just stealing others content and reselling it. But, now that they are seen, by no less than the SCOTUS, as a cable company, why wouldn’t the compulsory provisions of the 1976 act preempt the Network’s objections?

Anonymous Coward says:

Re: Re: Re:3 Does is make sense for Aereo to just pay retrans fee?

I thought you were asking why the local stations don’t simply provide access to their broadcasts online. The networks are already providing some of their content online through the existing cable and satellite TV providers both in the form of on demand and live streaming content and from the network directly. The real issue they are worried about is making sure they have control over it all.

jupiterkansas (profile) says:

Re: Re: Does is make sense for Aereo to just pay retrans fee?

Perhaps this was Aereo’s plan all along? Now they can just pay retrans fees and set themselves up as a basic cable company without having to go through all the impossible hoops someone starting a local cable company would have to go through.

So whichever way the court ruled, they win.

Gwiz (profile) says:

Does this ruling make USB TV Tuners illegal also? Like this one:

http://www.amazon.com/Ckeyin-Receiver-Adapter-Worldwide-Analog/dp/B00J5C0BPS/ref=sr_1_11?ie=UTF8&qid=1403884240&sr=8-11&keywords=tv+receiver+usb

Let’s see:
– receives OTA television broadcasts
– converts them to a format my computer understands
– lets me view it on my computer
– has DVR capabilities
– and I’m sure I could find a way to stream that to another computer across the internet if I wanted to

Looks exactly like what Aereo offered to me. Or is it only illegal if I have really, really long USB cord?

JEDIDIAH says:

Re: It get's better than that.

It’s even better than that. There are TV tuners that only have an ethernet interface. The manner in which they are used means that you are ALWAYS “retransmitting” content.

So is one of these things still legal to use?

What if I send the signals to my inlaws?

What if I put one of these in a data center somewhere?

The “quacks like a duck” approach is a really retarded way to avoid actually understanding anything that’s going on. You completely miss any of the relevant little details that any case hinges on.

Talk about blind justice…

Anonymous Coward says:

Difference to the user

> Nor do they significantly alter the viewing experience of Aereo’s subscribers
Um… I disagree. When I used to have cable tv, even the local stations had commercials replaced by the cable company (if I’m watching cable, why am I seeing an ad for cable…)

I also find that my blood pressure rises when I know I’m watching cable… … but that one is probably just me 🙂

David Cortright (user link) says:

But it *LOOKS* like an airport...

In other news, the TSA has decided to install security checkpoints at various locations in New Guinea and throughout Micronesia because—in the words of TSA spokesperson Lisa Farbstein—”It sure looks like an airport to me”.

The FAA said it’s team of aircraft experts were still researching whether this new aircraft should be classified as an ultralight (ULAC) or simply a pile of branches and bark (WOOD).

zip says:

but will this legal theory apply to P2P?

By that same logic, many (if not most) Bittorrent users would not be infringing copyright, since they are engaged in the act of downloading content — which is perfectly legal, whether copyrighted or not.

The uploading component that may or may not be built into the P2P software application is not something that the vast majority of users intentionally activate — or in many cases even know about.

zip says:

Gender Gap?

Is it sheer coincidence here that none of the 3 female Supreme Court justices accepted Aereo’s technical “under the hood” differences as valid arguments — while half of the 6 male justices did?

I’m just curious if men and women (on average) tend to view things differently when it comes to technical vs. substantive arguments?

Rekrul says:

Am I crazy, or would this ruling allow ruling allow Apple to sue every other tablet maker because they look like an iPad. I mean, since what’s inside doesn’t matter, just what it looks like, wouldn’t that make every other tablet an illegal copy of the iPad?

Yes, I’m aware that Apple wasn’t actually the first to make tablet computers, but they’re the company the US Government seems to have conferred “special” status upon.

Zonker says:

Re: Re: Re:

Indeed it did. Apple’s home court in California ruled that Samsung infringed Apple’s design patents for the iPad, copied from a Sony tablet revealed almost a year prior to the iPad’s release. Of course, Sony’s design wasn’t really a new idea either.

Apple was found infringing on Samsung’s functional patents too, but the President overturned Samsung’s ban on Apple products. Not surprisingly, he refused to do the same for Apple’s ban on Samsung products despite Samsung factories in Texas and Apple factories in China. Anything to help China’s growing economy I suppose.

But that’s patent law for you, a whole other beast altogether.

David Cortright (user link) says:

The sound this ruling makes hurts my ears

appleinaz, Aereo set up their antenna systems specifically to *COMPLY* with the laws as written. Single antenna, single account, single customer. If they wanted to not comply, that’s easy. Check out http://www.stream2u.me/

How a series of completely independent systems that happen to be running in parallel equates to a “broadcast” requires such lingual gymnastics that it could equally be interpreted to mean that storage locker providers are “broadcasting” boxes of old crap to its customers, and banks are “broadcasting” money.

Josh in CharlotteNC nailed it: all this does is keep piracy alive and well. And it will until the content providers get off their complacent asses and actually start giving customers in this highly connected world today what they want. I would love to see the next Game of Thrones try the Louis CK business model.

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