Aereo Wins Yet Another Ruling Over TV Networks

from the in-a-different-circuit dept

Aereo, the company that provides remote access to over-the-air TV via a series of antennas, has won yet another legal battle against television stations. As you may recall, there are a series of lawsuits by the TV networks against Aereo (and a weak competitor called FilmOn). Aereo was designed quite carefully to remain within the (somewhat insane) rules of copyright law, and so far that's been clear as it's won all of the cases against it so far. In the 2nd circuit (in NY) Aereo won at both the district court and appeals court levels. Just this week it's been noted that the broadcasters are likely to appeal to the Supreme Court.

But the NY fight is hardly the only one. Aereo was also sued in Boston by the Hearst Corporation (and, just this week, it was also sued in Utah). In the Massachusetts case, Aereo sought to have the case transferred to New York, noting that it was basically the same case it had won on in NY. And, like in all the other cases, Hearst Corporation, who owns some broadcast networks, argued for an injunction barring Aereo from operating. Today a judge denied both of those requests, noting that while the law is anything but clear, Aereo's interpretation of it makes much more sense.
In short, while the Transmit Clause is not a model of clarity, the Court finds at this juncture that Aereo presents the more plausible interpretation. As such, Hearst has not persuaded the Court that it is likely to succeed on the merits of its public performance claim.
Also, as in the NY rulings, the court here has found little evidence of irreparable harm if Aereo is left to remain in service:
While the prospect of harm is real, Hearst has not shown that WCVB will suffer the “full magnitude” of the claimed harm before the Court disposes of the case on the merits. Instead, it seems more likely that the harm will take several years to materialize....

Next, Hearst has not made a convincing showing that WCVB will be irreparably harmed in its ability to generate advertising revenue. Hearst’s claim that WCVB will not be able to measure viewers who access its programming through Aereo is simply not true. Nielsen, one of the main organizations tracking viewership for such purposes, announced in February, 2013, that it is beginning to include online viewership in its viewership totals.

Similarly, Hearst’s claim that Aereo’s services threaten its prospects of profiting from putting its programs online does not meet the standard for irreparable harm because WCVB’s plans to put programming online are insufficiently developed.
As with the recent rulings against the networks concerning Dish's AutoHopper commercial skipping technology, it's good to see more courts recognizing how to properly apply the irreparable harm standard.

Of course, as we've noted, Aereo's copycat, FilmOn, from wacky, publicity-seeking billionaire Alki David, which was put together sloppily in a weak attempt to copy Aereo, but without the same level of careful consideration of the complex situation in copyright law, keeps losing in court. The broadcasters (except for that case in Utah) seem a lot more focused on racking up more victories against FilmOn/Alki David, but that's actually why I think the judge's denial of Aereo's attempt to move this case to NY is a good thing. Having multiple good rulings that protect this kind of innovation in different circuits is a helpful thing.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    DannyB (profile), Oct 10th, 2013 @ 1:09pm

    If sanity prevails

    If sanity prevails we will eventually be able to get back the remote DVD-player & DVD rentals. The DVD player and the DVD are located in a large server room somewhere. I rent both the disk and the player, but they remain in the server room and are only connected to me by a long wire (the Internet).

     

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  2.  
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    out_of_the_blue, Oct 10th, 2013 @ 1:13pm

    Innovation doesn't mean using someone else's content.

    Aereo has nothing to broadcast except what others provide. That just can't stand up forever to reasoned scrutiny, no matter how the loony "long wire" advocates say it's "legal".

    And I still want a full physical auditing of Aereo's equipment to be sure they really have thousands of antennas and conversion systems, aren't all funneled into one at some point, which would be "broadcasting".

    By the way, if anyone is new to this and doesn't know how Aereo works -- well, you're in for some Rube Goldberg skirting of the law, which Mike regards as "innovation".

     

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  3.  
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    RD, Oct 10th, 2013 @ 1:36pm

    Re: If sanity prevails

    "I rent both the disk and the player, but they remain in the server room and are only connected to me by a long wire (the Internet)."

    Illegal! Dirty, filthy PIRATE! Grifting immoral stealer! (Did I cover all the bases?)

    Silly consumer, you know the length of the wire (and the fact that is uses that most evil of inventions, the INTERNET) makes you a DIRTY FILTHY GRIFTING IMMORAL PIRATE!!

    They are such COMPLETELY different methods, I'm surprised you would even bring it up and risk the wrath of Big Media.

    (/sarc, for the blue thick-heads out there)

     

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  4. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 2:12pm

    Innovation doesn't mean using someone else's content.

    Aereo has nothing to broadcast except what others provide. That just can't stand up forever to reasoned scrutiny, no matter how the loony "long wire" advocates say it's "legal".

    And I still want a full physical auditing of Aereo's equipment to be sure they really have thousands of antennas and conversion systems, aren't all funneled into one at some point, which would be "broadcasting".

    By the way, if anyone is new to this and doesn't know how Aereo works -- well, you're in for some Rube Goldberg skirting of the law, which Mike regards as "innovation".


    5th attempt to post this topic, over course of half hour -- oddly, was able to on another topic without out_of_the_blue user name...

     

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  5. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 2:16pm

    Re: Innovation doesn't mean using someone else's content.

    And so now I'm able to post WITH my user name? ... NO! STILL BEING BLOCKED.

     

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  6. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 2:20pm

    Why you doing this, Mike?

    out_of_the_blue user name blocked, even in subject line.

     

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  7.  
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    Anonymous Coward, Oct 10th, 2013 @ 2:22pm

    Re: Re: If sanity prevails

    You forgot Freetard!

     

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  8. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 2:22pm

    Re: Why you doing this, Mike?

    So is out_of_the_bleu! Peut-etre je doit dire adieu a le bleu!

     

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  9.  
    identicon
    out_of_the_blue, Oct 10th, 2013 @ 2:23pm

    Re: Why you doing this, Mike?

    This is actually Rikuo. I'm testing to see if OOTB's claims are true (see Blue, I'm even going out of my way to double check). This is being typed in Internet Explorer (I usually use Firefox and Chrome). I've given myself OOTB's username, but put in my usual email address.

     

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  10.  
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    Rikuo (profile), Oct 10th, 2013 @ 2:24pm

    Re: Re: Innovation doesn't mean using someone else's content.

    Well...I'll give you this one OOTB. I've just done a test, opened up Internet Explorer (I usually use Firefox and Chrome), borrowed your user-name and tried to post, but it got held in moderation, even though I put in my email address (which obviously you wouldn't know).

     

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  11.  
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    AC Unknown (profile), Oct 10th, 2013 @ 2:26pm

    Re: Re: Why you doing this, Mike?

    Spam filter. It's an automated process.

     

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  12.  
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    Rikuo (profile), Oct 10th, 2013 @ 2:29pm

    Re: Re: Re: Why you doing this, Mike?

    Exactly. Be honest (for once in your life OOTB), how many times in the past hour have you tried to post?

     

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  13.  
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    DannyB (profile), Oct 10th, 2013 @ 2:44pm

    Re: Why you doing this, Mike?

    > Why you doing this, Mike?

    Why are YOU doing this OOTB?

    Why can you not speak like an adult? Why the constant ad hom attacks? Why keep asking questions that have been answered?

    You are free to have your own opinion. If people don't agree, you can't force them. If you could make a persuasive argument, which you seem unable to do, you might persuade people to your view.

    But the bottom line is that you are not nor never have been here to engage in actual discussion about anything.

     

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  14.  
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    ahow628 (profile), Oct 10th, 2013 @ 2:50pm

    Fox is still on...

    I just checked and Fox is still broadcasting. Who knows how long they can continue to do so with this abomination of a service still operating and being found legal.

     

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  15.  
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    cpt kangarooski, Oct 10th, 2013 @ 2:57pm

    Re: Innovation doesn't mean using someone else's content.

    Aereo has nothing to broadcast except what others provide.

    Well, it's not a broadcast, technically (which you even implicitly admit in your own post), but so what if they don't? Video rental stores flourished for decades, and they didn't produce videos. Libraries can be found across the land, but most of them don't write and publish books (and those that do don't come anywhere close in comparison to the size of their collection). Xerox doesn't limit itself to only photocopying documents that Xerox itself created.

    Provided that you add net value, there's nothing wrong with being a middleman. It's rent-seekers, who try to make money in return for no overall benefit, who are the problems.

    Aereo is adding value. Their customers want that service and are willing to pay for it. That's not rent-seeking. And since the existence of work-alike companies suggests a lack of serious barriers to entry (such as patent holders stopping competition), perhaps the TV networks ought to get into the game too.

    And I still want a full physical auditing of Aereo's equipment to be sure they really have thousands of antennas and conversion systems, aren't all funneled into one at some point, which would be "broadcasting".

    Well, you're in no position to demand anything, but the litigants can certainly do this in the course of discovery. Since it's obvious that verification would occur, and that it would kill the entire business model if it turns out that Aereo isn't doing what they claim to be, I seriously doubt that they're lying. I suppose businesses have been caught making really stupid, obvious lies before, but the cleverness of the rest of the business and the technical feasibility makes me inclined to take Aereo at their word unless and until some evidence to the contrary emerges.

    5th attempt to post this topic, over course of half hour -- oddly, was able to on another topic without out_of_the_blue user name...

    This is actually the hilarious part. For you see, if Mike did institute some technical measure against you, to keep you from posting, you circumvented it within a half an hour, and I don't think that anyone here has a high opinion of your intelligence either, but you still figured it out.

    That being the case, how could you possibly expect companies like Google to stop piracy -- and only piracy -- through technical means? Technical schemes to block information flow never work well. Google clearly can't stop it, even if they were foolish enough to want to do so of their own accord. The Chinese haven't been able to completely censor their Internet traffic despite throwing vast sums of money and manpower at it. The NSA couldn't stop it, and they're professionals in the intelligence community.

    But I've answered my own question. I think that you could expect it because, as I pointed out, no one here has a high opinion of your intelligence, after all the stupid things you constantly say.

     

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  16.  
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    Paul Pentz (profile), Oct 10th, 2013 @ 3:07pm

    I just don't get it

    Wouldn't Aereo viewers mean more people are watching the broadcasts, and the commercials? With so many people cord-cutting, I would think broadcasters would welcome them with open arms.

     

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  17.  
    identicon
    RD, Oct 10th, 2013 @ 3:09pm

    Re: Innovation doesn't mean using someone else's content.

    "Aereo has nothing to broadcast except what others provide."

    And if they or netflix or hulu or any of the other "grifters" you so despise wont make the services and software to do this, who will? Sure as fuck not Big Media or hollywood, they have proven themselves institutionally incapable of giving one single SHIT what the consumer wants.

    Building a better mousetrap (delivery of content) IS innovation you stupid shitwad. Especially when those who hold the keys to the content (note: NOT the creators of that content, but big multinational media cartels. just what the constitution intended...) refuse to innovate and provide anything close to what everyone else is making.

     

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  18.  
    identicon
    RD, Oct 10th, 2013 @ 3:12pm

    Re: Re: Re: Why you doing this, Mike?

    Good. FU. That is how a shit-stirring troublemaker who has ZERO interest in actually discussing a topic SHOULD be handled. I give Mike 2 "thumbs up" for moderating a known instigator. You brought it on yourself, its what you DESERVE.

     

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  19.  
    identicon
    RD, Oct 10th, 2013 @ 3:17pm

    Re: Re: Innovation doesn't mean using someone else's content.

    "This is actually the hilarious part. For you see, if Mike did institute some technical measure against you, to keep you from posting, you circumvented it within a half an hour, and I don't think that anyone here has a high opinion of your intelligence either, but you still figured it out.

    That being the case, how could you possibly expect companies like Google to stop piracy -- and only piracy -- through technical means? Technical schemes to block information flow never work well. Google clearly can't stop it, even if they were foolish enough to want to do so of their own accord. The Chinese haven't been able to completely censor their Internet traffic despite throwing vast sums of money and manpower at it. The NSA couldn't stop it, and they're professionals in the intelligence community."

    Comment of the YEAR.

    The cognative dissonance is so high with him, he can't see that, if he can circumvent a technical means of keeping him out (knowing very little about how things work on the web from a technical standpoint) how on earth does he expect search engines (who's purpose is...say it with me...to INDEX EVERYTHING ON THE WEB, regardless of content.) and ISP's and everyone else (who know a FUCK LOT more than him) to do so? It boggles the mind to think that someone can walk through life with that much contradiction in their head and still function. But I guess that doesn't matter to someone who just points to "THE LAW" and says "DO!" regardless if it's even actually possible or not.

     

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  20.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 3:22pm

    Re: Re: Innovation doesn't mean using someone else's content.

    Good

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    RD, Oct 10th, 2013 @ 3:31pm

    Re: I just don't get it

    "Wouldn't Aereo viewers mean more people are watching the broadcasts, and the commercials? With so many people cord-cutting, I would think broadcasters would welcome them with open arms."

    It would, if the goal was actually more viewers. But the goal is control and perpetuating protectionist policies (see also: copyright itself), and a blatant anti-consumer attitude that pervades all the media companies and broadcast networks. It's a systemic problem that will only change when they have no choice, which is coming fast with the web and technology enabling more and more people to be able to create OUTside of the current system.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    cpt kangarooski, Oct 10th, 2013 @ 3:39pm

    Re: I just don't get it

    What more people?

    People who want to watch broadcast TV already do so, either via over the air broadcast, or via cable. They see the ads either way. There's not much more money to be made there.

    But currently, cable providers usually have to pay to carry broadcast channels. (Though broadcasters could force cable providers to carry them for free, if they preferred) If cable providers incorporated an Aereo-like system into their infrastructure, so that a cable user who tuned into channel 7 would get an over the air broadcast, they could stop paying the fee, or at least have a better negotiating position. The broadcaster doesn't get more money from ads, and loses money from no more licensing fee.

    So the hatred is entirely understandable.

     

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  23.  
    identicon
    Drew, Oct 10th, 2013 @ 3:42pm

    Re: I just don't get it

    The rules for retransmitting to the public say that local broadcasters can choose "must carry" (channel must be included in all packages) or retransmission consent (channel can be carried in exchange for fees) when dealing with cable or satellite operators.

    Because few people now have their own antennas for picking up local stations, they demand that their cable provider include them which frees the broadcasters to choose retransmission consent status and hold their channel hostage when they want more money. For example, CBS recently negotiated a fee of close to $2 per subscriber from Time Warner Cable.

    If Aereo succeeds, some number of customers will drop cable and the broadcasters will lose a small amount of money. What's much worse is the chance that cable companies will copy Aereo's method and they lose all of the retransmission money.

     

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  24.  
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    Drew, Oct 10th, 2013 @ 3:54pm

    Re: Fox is still on...

    Another writer on this issue has raised the possibility that the networks will stop broadcasting in HD if they don't manage to eliminate Aereo. They could deliver HD feeds to providers that pay retransmission fees, and down-convert the over-the-air transmission.

     

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  25.  
    identicon
    Anonymous Coward, Oct 10th, 2013 @ 5:40pm

    Re: Re: If sanity prevails

    Needs more barnyard noises.

     

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  26.  
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    nasch (profile), Oct 10th, 2013 @ 9:01pm

    Re: Innovation doesn't mean using someone else's content.

    By the way, if anyone is new to this and doesn't know how Aereo works -- well, you're in for some Rube Goldberg skirting of the law, which Mike regards as "innovation".

    I came to the comments hoping blue would talk about skirting the law. Otherwise known as obeying the law. Hilarious!

     

    reply to this | link to this | view in thread ]

  27.  
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    out_of_the_blue, Oct 10th, 2013 @ 10:30pm

    Re: Why you doing this, Mike?

    Stop impersonating me AJ!

     

    reply to this | link to this | view in thread ]

  28.  
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    techflaws (profile), Oct 10th, 2013 @ 10:48pm

    Re: Re: Innovation doesn't mean using someone else's content.

    NO! STILL BEING BLOCKED.

    And nothing of value was lost.

    BTW, here's a small supply of lower-case letters, use them wisely: abcdefghijklmnopqrstuvwxyz.

     

    reply to this | link to this | view in thread ]

  29.  
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    Gwiz (profile), Oct 11th, 2013 @ 7:11am

    Re: Re: Re: Re: Why you doing this, Mike?

    FWIW I've been experiencing problems posting comments from the preview screen. It either screws up the html tags or gives me a nice red colored *** ERROR *** message without an explanation.

    I've had to cut n paste my comment back onto the original reply window to make them work.

     

    reply to this | link to this | view in thread ]

  30.  
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    Gwiz (profile), Oct 11th, 2013 @ 7:13am

    Re: Re: Re: Re: Re: Why you doing this, Mike?

    This comment worked OK - but there wasn't any tags in it, so.....

     

    reply to this | link to this | view in thread ]

  31.  
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    Alki David, Oct 11th, 2013 @ 6:16pm

    Re: Re: Why you doing this, Mike?

    Dirt. That's what this sideshow is all about. Posting dirt on people.. companies with opposing views. Primitive.

     

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  32.  
    identicon
    Anonymous Coward, Oct 13th, 2013 @ 8:26pm

    Re: Re: Re: Why you doing this, Mike?

    And the RIAA's opinion of the EFF is completely fair and balanced. By the way, I've got a bridge in Brooklyn I'd like to sell you.

     

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  33.  
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    ahow628 (profile), Oct 15th, 2013 @ 7:04am

    Re: Re: Fox is still on...

    You know what makes me want to consume a product? When the producer lowers the quality. Nothing improves the customer experience like lower quality.

     

    reply to this | link to this | view in thread ]


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