Why Do So Many People Describe Aereo 'Complying' With Copyright Law As The Company 'Circumventing' Copyright Law?

from the the-law-is-the-problem dept

We mentioned this briefly in our writeup of the oral arguments at the Supreme Court in the Aereo case, but I wanted to focus in on one particularly annoying issue that has come up repeatedly throughout this company's history: the idea that its compliance with the law is actually the company circumventing the law. A perfect example of this is an incredibly ill-informed opinion piece for New York Magazine's Kevin Roose that declares, based on a near total misunderstanding of the case, that the Supreme Court should shut down Aereo because its 10,000 antennas are a cheap "copyright-avoidance gimmick."

But that's simply incorrect. It's actually 100% the opposite. We'll fully admit, as that article does, that the setup of Aereo is simply insane from a technology standpoint. There is no good reason at all to design the technology this way. But the reason they're doing this is not to avoid copyright but to comply with it. If you think that this is insane (and you're right) the answer is not to whine about what Aereo is doing, but to note that it's copyright law that leads to this bizarre result. Don't blame Aereo for following exactly what the law says, and then say it's a "gimmick." Blame the law for forcing Aereo down this path.

Of course, it's one thing for an uninformed magazine columnist to make this argument... but quite another for Supreme Court justices to do so themselves. And tragically, in the oral arguments, a few of them appeared to be coming close to making that kind of argument (though not so ridiculously as the column above). The worst offender was Chief Justice Roberts, who asked:
All I'm trying to get at, and I'm not saying it's outcome determinative or necessarily bad, I'm just saying your technological model is based solely on circumventing legal prohibitions that you don't want to comply with, which is fine. I mean, that's -- you know, lawyers do that.
Note the twisting here. Complying with the law is now "circumventing legal prohibitions." Justices Ginsburg and Scalia both also asked about whether or not the technology decisions had any technological purpose, or if they were solely about the law (though, at least both questioned if the choices were about "complying" with the law). But the implication that is being raised (and has been explicitly raised by others) is that in setting up this "a Rube Goldberg–like contrivance" (as 2nd Circuit judge Denny Chin called Aereo in his dissent to the company's victory in that court) it means that they're somehow violating the law by meticulously complying with it.

And that's a very dangerous assumption, even by implication.

If that argument is allowed to fly, then it's not a stretch to see how copyright holders might twist lots of versions of complying with the law, into infringing on the law simply by arguing that the form of compliance is somehow "too clever." That would lead to all sorts of dangerous implications -- in which those who are being careful to comply with the law may suddenly be deemed infringing because of their careful compliance. Under such a standard, the more carefully you aim to comply with the law, the greater chance you can be accused of "contorting" yourself in a manner that allows copyright holders to argue that your compliance is somehow "less than sincere" as appears to be the main suggestion here.

It's troubling that at least a few of the Supreme Court Justices appear to even be considering such a possibility.

Yes, Aereo's setup is technologically bizarre. But that's because it's doing everything to comply with copyright law. If you have a problem with it, it's not because the company is breaking the law, it's because the law itself is broken. It would be a cruel twist of fate for Aereo to lose its case because Supreme Court Justices believed that it had broken the law, because the inevitable results of the broken law itself create a situation where complying with the law looks so bizarre that it appears to be infringement!

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  1.  
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    Ninja (profile), Apr 23rd, 2014 @ 10:06am

    Damned if you comply, damned if you don't.

    There are a few implications here. First, if following the law has virtually the same implications of breaking it, why bother? Why respect such law? If people decide to go "pirate" and simply disregard such laws then there will be much more work for the MAFIAA which will clog the legal system with lawsuits resulting from such inherent disrespect for those laws. Everybody loses in the end.

    Or not. Pirates couldn't care less in the end.

     

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    BentFranklin (profile), Apr 23rd, 2014 @ 10:20am

    That's a great point. Thanks for pointing out the implicit lies they use to frame the debate and not just the over ones.

     

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    Violynne (profile), Apr 23rd, 2014 @ 10:26am

    Copyright's sole purpose is to stifle innovation's ability to distribute without payment (or allow free speech).

    If this wasn't its purpose, there would be no need for a law.

    The very fact copyright is established at the time of creation of the works without registration should have tipped off most of you.

    The entire law needs to be abolished, and SCOTUS doesn't have this power.

    Congress does, but as long as Hollywood is giving some members appearances in movies, don't expect any change for the better in your lifetime (plus 75 years).

     

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    Ima Fish (profile), Apr 23rd, 2014 @ 10:27am

    There's been a flip within the last 100 years. While copyright used to be considered an exception to the freemarket, nowadays copyright is the defacto natural order. If you're not paying what the copyright industry wants, you're pirating. Even if you are paying. Even if you're not legally obligated to pay. It's either the MPAA and the RIAA's way or you're a thief.

    I've said before, the copyright industry always gets their way. When they want to get paid, but aren't, they sue. If they lose, they have laws passed. If they can't get federal laws passed, they have state laws passed. If that doesn't work, they have treaties passed. They never give up and they never lose in the long term.

    Copyright is about to get a whole lot worse, and it's never gonna get better.

     

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  5.  
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    Anonymous Coward, Apr 23rd, 2014 @ 10:32am

    Re:

    " if following the law has virtually the same implications of breaking it, why bother? "

    That is actually a very widespread perception of copyright law when it comes to filesharing by now. The reason behind it is, that even if you never use a filesharing tool, have secured W-Lan (or no w-lan at all), Hell, even if you don't even *use* the internet connection because you are not even there (no running computers, no w-lan) You can still get hit with one of those settlement letters for doing *nothing*. And the best part is, you can't even really defend yourself, just drive down the price (it is now slowly changing in the US, but elsewhere not so much) of the settlement, unless you chose just not to pay up and bet on their unwillingness to actually sue.

    Regardless, The law allows everyone to be hit and you have to try and prove your innocence which boils down to proving the non-existance of something which is virtually impossible.

    The reaction? nobody gives a shit about the law. If you can get hitwith such a letter if you do fileshare at about the same rate as if you don't, why even bother complying with the law?

    I'm talking here about personal experience in germany, but the setup is very similar in many european countries.

     

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    Jay (profile), Apr 23rd, 2014 @ 10:33am

    Re:

    But that's the problem. Even if the pirates don't care, the laws continue to look into serving the interests of the largest "shareholders" of copyright instead of the public.

    It doesn't matter if the content is not legally available.

    It doesn't matter if smaller publishers are forced to comply with bogus copyright needs.

    It doesn't matter if the public doesn't want stronger copyright laws.

    As far as the Supreme Court is concerned, they'll support these issues for the legacy industries through thick and thin.

    A prime example is the Grokster ruling which added laws outside of what Congress intended. Inducement was meant to force people into the older business models of the RIAA before the internet matured.

    It didn't work at all in stopping the tide of new technology.

    Now you have the destruction of cloud technology if the cord isn't long enough and the Supreme Court has some dangerous precedents on these issues.

    We can't let the courts decide this. We actually need to show Congress that this is not what we want. If it gets to the Supreme Court, we've lost the battle.

    Just my take on the situation.

     

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    Anonymous Coward, Apr 23rd, 2014 @ 10:34am

    Re:

    Yeah, but your congress won't do this and they will point to international agreements for why they "can't". Funny though, that the US has normally no problem breaking international agreements at will.

     

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    Lowestofthekeys (profile), Apr 23rd, 2014 @ 10:35am

    It's every company's prerogative to look out for their own business. I think it's pretty obvious Aereo wouldn't base the foundation of their business on something illegal if it meant the company could get shut down.

    That leads me to believe that they were trying to act within the constraints of the law, but it was less risk to their growth to take the route where they're being perceived as "dirty thieves" by the media companies.

    Then again, they could have taken the other route and end up collapsing under the weight of the licensing fees.

     

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    Alien Rebel (profile), Apr 23rd, 2014 @ 10:45am

    I See a Butterfly of Money

    Since so much of copyright law has the precision of a Rorschach inkblot test, it's not surprising that so many simply react with a "well, it looks like infringement to me." Particularly when those who stand to profit have such a loud megaphone to make suggestions.

     

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    Anonymous Coward, Apr 23rd, 2014 @ 10:56am

    So now you can be punished for not intentionally no breaking a law.

     

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    Trevor, Apr 23rd, 2014 @ 10:57am

    Exactly my point:

    http://www.techdirt.com/articles/20140422/13321326992/supreme-court-discussion-aereo-least-justices- recognize-harm-they-might-do.shtml#c19

    ".. arguing repeatedly that the whole thing seems to have been set up solely to fit within the law.."

    Isn't that the point of, well, following the law?

    1. Law A is established.
    2. Person X changes behavior to fall within the parameters of that law.
    3. ???
    4. PERSON X IS NOT ARRESTED FOR BREAKING THE LAW.

    So if my city makes the speed limit on the freeway 75 miles per hour, and I travel 74 miles per hour, can I get a ticket for "acting solely to fit within the law?"

    Sigh.

     

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    johnjac (profile), Apr 23rd, 2014 @ 10:57am

    Broadcasters exclusive have access to spectrum, in turn they freely broadcast their content.
    Cable Companies exclusive have access to right of way, in turn they pay retransmit fees to broadcasters.

    Aereo has neither of these advantages. So why should they have to play by the old rules?

     

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    Just Another Anonymous Troll, Apr 23rd, 2014 @ 10:58am

    So that's why police can beat you to death for "resisting arrest" i.e. be crushed under cops and have no chance to surrender. Because compliance with the law = circumventing the law.

    On a semi-related note, I would like to demonstrate how ridiculous copyright law is:
    Is storing a whole movie or parts of a movie on electronic storage illegal if you haven't bought a copy?
    If you said yes, you think that remembering a movie you saw at the theater is infringement.

     

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    johnjac (profile), Apr 23rd, 2014 @ 10:58am

    Re:

    * exclusively x2

     

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    That One Guy (profile), Apr 23rd, 2014 @ 11:00am

    Re: I See a Butterfly of Money

    It's a matter of penalties and potential gains.

    There is zero penalty for filing false, even obviously false DMCA or copyright infringement claims against someone or some site. If the judge slaps you down, a simple 'Oops, I was wrong' is enough to completely negate any penalty you might otherwise have faced. And if your target, innocent or not decides to pay, rather than fight, well, free money, all it cost was one letter.

    However, defending yourself, that's not so easy, and a lot of the time, even if the target knows they're completely in the right, completely innocent, it's still easier and cheaper for them to pull the content, or pay the demanded 'settlement' fee, than actually take it to court and fight it, especially when they know that their odds of recovering any of the money they spend to defend themself is non-existent, and win or lose they'll never get a dime of it back.

     

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  16.  
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    andy, Apr 23rd, 2014 @ 11:06am

    Re:

    Actually, there are many situations where the law is ignored by the majority because it is just stupid, these supposedly well educated Judges just don't get the technology that the Internet has enabled and with their ignorance or blatant disregard for the consumer they make themselves look silly to the majority.

    More and more the courts are making judgments that just make them irrelevant to society. They should be ruling in favor of the greater good, not for a minority. And stating that finding a way to comply with the law and do something innovative is just beyond crazy and makes even more sense for people to ignore the laws when it comes to copyright.

     

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    Peter (profile), Apr 23rd, 2014 @ 11:08am

    Why Do So Many People [see themselves as] 'Complying' With [traffic] Law [when they are just]'Circumventing' [traffic] Law [by driving at 49 mph]?

     

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  18.  
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    Baron von Robber, Apr 23rd, 2014 @ 11:08am

    Re:

    If the court rules against Aereo for following copyright law, I don't see the point in following copyright laws.

     

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  19.  
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    Anonymous Coward, Apr 23rd, 2014 @ 11:10am

    I do not drive drunk. That's my "felony avoidance gimmick".

     

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  20.  
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    Anonymous Coward, Apr 23rd, 2014 @ 11:11am

    Re: Re:

    We can't let the courts decide this. We actually need to show Congress that this is not what we want. If it gets to the Supreme Court, we've lost the battle.

    ..because congress has such a great track record with copyright issues.

     

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  21.  
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    anon, Apr 23rd, 2014 @ 11:11am

    Silly

    I honestly don't understand how a Judge can state that complying with the law is incorrect and that you can be punished for it. Damn, I am scared to do anything now in case a judge just decides I am guilty for obeying the law.

     

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    Alien Rebel (profile), Apr 23rd, 2014 @ 11:15am

    Re: Re: I See a Butterfly of Money

    Absolutely. Copyright law has been weaponized.

     

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  23.  
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    Anonymous Coward, Apr 23rd, 2014 @ 11:18am

    One hopeful interpretation

    The SC can't change the law, but they can change the interpretation (e.g. cablevision, etc.). Perhaps they are looking for Aero to admit that what they have to do to comply with Cablevision is ridiculous and give them the impetus to simplify the requirements.

     

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  24.  
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    mcinsand, Apr 23rd, 2014 @ 11:18am

    I see 'circumventing' in a whole new light

    "...based solely on circumventing legal prohibitions that you don't want to comply with..."

    Thank you for your analysis, and it gives me a lot of insight into the word 'circumventing' is often used. I appreciate the irony in the above quote like I would not have only ten minutes ago. 'Circumventing' is often seen as a nefarious act, and it might well be bad behavior if referring to avoid detection, for example. In this case, however, we are talking about a process that is overly cumbersome simply to remain in compliance with the law. In Roberts' view, we are definitely 'circumventing' police speed traps when we remain under the speed limit to take longer to get home. For that matter, we are 'circumventing' the EPA when we take a Saturday morning to drop off hazardous waste at an appropriate waste pickup, rather than to pour the waste into the creek behind the house.

     

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  25.  
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    Calvin (profile), Apr 23rd, 2014 @ 11:20am

    Evading Speeding Fines

    Your Honour, the defendant is accused of attempting to evade a speeding fine by driving slower than the posted speed limit.
    Defendant how do you plead.
    Not guilty your honour.
    OK, you've admitted you were speeding. You are fined $100.
    Next case please

     

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  26.  
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    John Fenderson (profile), Apr 23rd, 2014 @ 11:22am

    Re: Re:

    Yep, here in the US too. Although I don't engage in piracy myself, copyright law as it exists today is so crazy that I pretty much ignore it. Just like nearly everyone I know. It's really the only rational response.

     

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  27.  
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    Frizhair, Apr 23rd, 2014 @ 11:22am

    Complying?

    Do you have some reference explaining how it is you feel Aereo is complying with, rather than violating, copyright law?

     

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  28.  
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    zip, Apr 23rd, 2014 @ 11:31am

    could a "circumvention standard" create a revolution?

    An adverse ruling for Aereo might set a good precedent if it set a "circumvention" standard. Then every mega-corporation that takes advantage of tax loopholes like offshoring and shell companies --or a zillion other strategic tax-cheat strategies -- would then be forced to adhere to the same "circumvention" standard. US-based cruise ship companies would be forced to fly the US flag and pay US taxes, instead of pretending that some PO box in Nigeria is really their headquarters. The "circumvention standard" - applied universally - might even wipe out the National Debt.

    But I need to wake up from my dream. The sad reality is that there will always be a double standard, and the "justice" one receives being dependent on how close (or far) one is to the centers of power. (and being a declared enemy of Hollywood is about as bad as it gets) Anyway, this "circumvention standard" has long applied to the little people, who can for instance go to jail for breaking up bank withdrawals into small chunks to avoid the $10,000 'snitch' threshold.

     

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  29.  
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    Anonymous Coward, Apr 23rd, 2014 @ 11:33am

    Another annoying line of questioning from the justices....

    Justice Antonin Scalia asked Frederick if Aereo could go ahead and broadcast widely, instead of merely to local markets. "It does not implicate the private performance and public performance distinction," said Frederick. "Even if you were to take distant signals and make them available in the home, it's still through a user-initiated, user-specific copy of distant programming."

    That may be a legally correct argument, but it also seems like one that missed the justice's primary concern. What Scalia was really asking was, how many different lines of business does Aereo think it can get into and avoid paying copyright fees? Rebroadcasting non-local signals would require paying retransmission fees, and it seems like it would have been an opportune time to acknowledge that.


    http://arstechnica.com/tech-policy/2014/04/at-oral-arguments-supreme-court-isnt-sold-on-aereo/

    T he justices should know better and Frederick should have called them on this. What Aereo may or may not decide to do in the future has absolutely no relevance in this case. This case is strictly about what they ARE doing right now and right now they are only setting up antennae for subscribers in their local area. Whether or not they COULD set up antennae in other markets so that subscribers could access content in from those markets is irrelevant. You can't be held liable for actions that you could commit but don't.

    And since when is this a "broadcast" on Aereo's part. The signal there is between one user and one antenna. There is nothing "broad" or "cast" about that.

     

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    Just Another Anonymous Troll, Apr 23rd, 2014 @ 11:36am

    Re: could a "circumvention standard" create a revolution?

    Aereo isn't circumventing anything. It is bending over backwards to comply with the laws.

     

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    techdirtReader, Apr 23rd, 2014 @ 11:40am

    compliance and gimmick are not mutually exclusive

    Why must compliance and gimmick be mutually exclusive? To comply with the law, Aero has implemented a gimmick device.
    We can disagree whether Aero efforts to comply are gimmicky or not, but not that compliance is never gimmicky.

    Suppose Supreme Court allows religious exemptions to Obamacare, and suppose a non religious company all the sudden claims to be religious to some made up God that doesn't believe in health coverage. Would that not be gimmick trick to work around the law?

     

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  32.  
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    beltorak (profile), Apr 23rd, 2014 @ 11:41am

    Re:

    > It's either the MPAA and the RIAA's way or you're a thief.

    Even if I go their way I am a thief. They tell me so every time i put a dvd into my player.

     

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  33.  
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    Anonymous Coward, Apr 23rd, 2014 @ 11:45am

    Doesn't Aereo have a lawyer that can sack-up and define the convoluted arrangement as compliance not circumvention? At least that'd throw the other lawyers on the defense having to explain how copyright is at fault with the setup.

     

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  34.  
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    Mike Masnick (profile), Apr 23rd, 2014 @ 11:45am

    Re: Complying?

    Do you have some reference explaining how it is you feel Aereo is complying with, rather than violating, copyright law?

    This is probably the best, most comprehensive discussion. Though, you could also read the district and appeals court rulings finding Aereo to be legal.

    http://arstechnica.com/tech-policy/2012/08/why-johnny-cant-stream-how-video-copyright-went-ins ane/

     

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  35.  
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    John Fenderson (profile), Apr 23rd, 2014 @ 11:46am

    Re: Complying?

    Check out the numerous articles on the subject here and elsewhere. However, you're asking a question that can't really be answered as such. First, you have to say what you believe Aereo is doing that is in violation of copyright law.

    The case being made against them is primarily that they're engaging in a "public performance" and therefore infringing. The defense to that is that it's not a public performance at all.

     

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  36.  
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    Anonymous Coward, Apr 23rd, 2014 @ 11:49am

    Re: Evading Speeding Fines

    Actually there are cases such as this. You can be charged with "Impeding the flow of traffic" by driving too slow when the rest of traffic is traveling over the speed limit.

     

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    beltorak (profile), Apr 23rd, 2014 @ 11:51am

    aero is guilty of two of the highest crimes in these modern united states:

    * felony interference with a business model.

    * felony compliance with legal statues.

     

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    Ninja (profile), Apr 23rd, 2014 @ 11:54am

    Re: Re:

    Sometimes destruction is needed. Maybe if the US goes down that hole and see their online companies being decimated or moving overseas others will think twice before allowing such level of madness.

    When I said pirates couldn't care less I mean unless there are full physical barriers set up they'll still share. Before it was possible to share on the web I did it on vhs, tapes and whatever. And if I can't get it at all and don't have the money (or find it too expensive) then it doesn't exist, I'll go without. I'm pleased to see the younger generation is increasingly choosing to go without.

     

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    Trevor, Apr 23rd, 2014 @ 11:56am

    Re: Re: Complying?

    From what I understand, the courts defined "public performance" as X, Y, and Z. The court made the distinction that it was only public performance because of those attributes.

    Aero set up a system that AVOIDS those attributes, thus complying with the law. The argument is that in avoiding the attributes, they are "gaming the system" and should still be liable, even though they did not do what is technically needed to be found liable.

     

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    Ninja (profile), Apr 23rd, 2014 @ 11:57am

    Re: Re:

    Up to the point people disregard the established governments into chaos.

    As an interesting info, here in Brazil the legal system is largely flawed, specially regarding criminal law. People got fed up and started doing justice with their own hands (ie: lynching has become more and more common). This has all sorts of dangerous developments. All because the Government only cares about itself.

     

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    mcinsand, Apr 23rd, 2014 @ 12:01pm

    low speeds... concurrently similar and different

    On most highways, there is a minimum speed limit, as well. Sadly, we do not enforce minimum speed limits, particularly since slow drivers tend to trigger more accidents than fast drivers. When you put it that way, when I drive within a certain speed range to balance fast versus slow, I am circumventing not one but two legal principles. Oh, my! I am bad! Throw me in jail right now!

     

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    Ninja (profile), Apr 23rd, 2014 @ 12:02pm

    Re: Re: Re: Complying?

    If what Aereo is doing is, in fact, wrong but possible regarding current laws then the right response is not to make it guilty for complying with the law but rather to let it go and fix said law.

    What the MAFIAA is trying here is incredibly dangerous and it will backfire. How long till artists sue them for "gaming the system" in their accounting practices even thought they are seemingly legal?

    Sometimes I do wish to see chaos...

     

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    Matthew (profile), Apr 23rd, 2014 @ 12:07pm

    Makes sense to me.

    If the law requires you to do ridiculously complex things then the law is clearly intended to discourage you from doing those things. For you to do them anyway is to show a complete disregard for the spirit of the law.
    Love is hate. War is peace. Obeying the law is breaking the law.

     

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    David, Apr 23rd, 2014 @ 12:07pm

    Clear circumvention

    It's just like copyleft is circumventing copyright law by building on its letter while violating the spirit of the founding fathers of copyright law, Mickey Mouse and Bugs Bunny.

    If the courts don't put a stop to creative law use, the pinko commie fairie faggots win.

     

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    Anonymous Coward, Apr 23rd, 2014 @ 12:09pm

    Re: Re: Re: Complying?

    My question is where exactly can the "public" see one of these "performances"?

     

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    Lurker Keith, Apr 23rd, 2014 @ 12:09pm

    So that's how they did it...

    So this is how the NSA managed to make every citizen a suspect. Compliance w/ the law is even more suspicious than breaking it!

    This completely destroys the concept of Rule of Law.

     

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    kenichi tanaka (profile), Apr 23rd, 2014 @ 12:15pm

    Just because the cable companies and the network are using public spectrums to broadcast their content doesn't mean that companies like Aereo can intercept those transmissions and make money off those transmissions by re-broadcasting those signals without compensating the networks and the cable companies who have the transmission rights to that content.

    What Aereo is doing is nothing more than your neighbor stealing your car out of your driveway, using it for their personal use, and not compensating you for their use of your car.

    Aereo is simply engaging in theft.

     

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  48.  
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    Anonymous Coward, Apr 23rd, 2014 @ 12:21pm

    Re: Re:

    Not to mention it also erodes a lot of respect people have for the law and copyrights.

    When you have more and more people saying that they'd be perfectly fine if every single patent and copyright were abolished, and your business depends on both, that's a sign that you're screwing yourself over long term.

     

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  49.  
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    gorehound (profile), Apr 23rd, 2014 @ 12:27pm

    The more people who cut their Cable and Boycott MAFIAA Big Content the better.We will probably watch MAFIAA kill off Aereo and then within a year they will just rip off their idea and launch their own similar service.

    I have not payed for one piece of MAFIAA for around 10 years.I do buy Art but only from Indie and local Non-MAFIAA Artists.

    If I need a film or TV Show that abd I order it used or buy it local used and physical media only.

    Fuck the MAFIAA !

     

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  50.  
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    Anonymous Coward, Apr 23rd, 2014 @ 12:31pm

    Re:

    Aereo isn't intercepting or re-broadcasting anything. Aereo is providing access to equipment that a user can use to receive a free OTA signal that is then transmitted to them over the internet. To re-broadcast something you have to transmit one signal you receive to many. Furthermore, for Aereo to be doing it, they would have to control the transmission. They aren't. The user controls the equipment. This is one signal received transmitted to one user by that user using equipment provided by Aereo.

     

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  51.  
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    John85851 (profile), Apr 23rd, 2014 @ 12:33pm

    Re: Re:

    This is all the MPAA/ RIAA's fault even if they won't admit it. They got themselves into this position by sending out subpoenas to IP addresses which netted them "criminals" such as a laser printer and an elderly lady with barely a web browser.

    Maybe people would have more respect for these agencies (or not) if the punishment was proportional to the crime. How else should people feel about an agency that tries to sue a college student for hundreds of thousands of dollars or bring a "criminal" laser printer into court?

    So, like you say, if you're going to be sued for hundreds of thousands of dollars for simply being accused of something, why not actually do it?
    Note: I'm not suggesting people break any law or do any kind of illegal file-sharing.

     

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  52.  
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    Anonymous Coward, Apr 23rd, 2014 @ 12:37pm

    for the same reason the entertainment industries dont say copying, they say stealing!! for the same reasons they dont say sharing/borrowing, they say pirating!!

     

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  53.  
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    Ed the Engineer, Apr 23rd, 2014 @ 12:41pm

    There is no law against it.

    kenichi tanaka wrote:

    "...doesn't mean that companies like Aereo can intercept those transmissions and make money off those transmissions by re-broadcasting..."

    How are they "re-broadcasting"? You might as well argue that a dvr is re-broadcasting a show, because I watch the show the next day. Or even worse, I am a thief, because I like a movie I recorded so much, I watch it twice. Heaven forbid!

    There is NO LAW which defines the maximum distance between either my antenna and dvr, or my dvr and my TV. Deal with it. There used to be a thing called a VCR rabbit, I had one. With it, I could watch the living room VCR in my bedroom. I was not "re-broadcasting" anything, even though the distance between the VCR and TV was some 40 feet. How can this be so hard for some people to understand. What they really mean to say is "It should be against the law". I think they are crazy, but they could at least be honest and say that.

     

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  54.  
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    John Fenderson (profile), Apr 23rd, 2014 @ 12:42pm

    Re: Re: Re: Complying?

    "The argument is that in avoiding the attributes, they are "gaming the system" and should still be liable, even though they did not do what is technically needed to be found liable."

    Right, which is the argument that makes no legal or logical sense. If what you're doing is not illegal, then you should get legal penalties for doing it.

     

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  55.  
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    John Fenderson (profile), Apr 23rd, 2014 @ 12:42pm

    Re: Re: Re: Re: Complying?

    "you should NOT get legal penalties"

    Sheesh.

     

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  56.  
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    Anonymous Coward, Apr 23rd, 2014 @ 12:51pm

    Re: There is no law against it.

    And the issue of time-shifting across a wide area network from a third party has long since been decided in Cablevision. That part is no different.

     

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  57.  
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    Anonymous Coward, Apr 23rd, 2014 @ 12:53pm

    At this point I have to wonder, given how much they HATE the ruling in the Cablevision case, if the plaintiff's didn't use their influence in politics to get an assurance that the Supreme Court would hear the case early on, then have their attorneys sandbag the district and appellate court trials so that they could get it there just so that they could try to get the Cablevision case either overturned or at least severely limited. Given the history of those involved here, I wouldn't put it past them to pull such a stunt. (Alright, I take my tinfoil hat off now.)

     

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  58.  
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    beltorak (profile), Apr 23rd, 2014 @ 12:53pm

    Re:

    this is the second time you have made that horrendous analogy. aero is not stealing anything; the broadcast is still receivable by anyone else after I ask aero to record it for me.

     

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  59.  
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    Ruben, Apr 23rd, 2014 @ 12:53pm

    Re:

    What Aereo is doing is nothing more than your neighbor stealing your car out of your driveway, using it for their personal use, and not compensating you for their use of your car.

    Would you mind elaborating on this analogy? Here's my take.

    The car is the broadcast signal, which is available to everyone for free. Aereo then takes the car- which remains available to others- and expands the group of people able to borrow the car(which remains available to everybody for free) from a neighborhood to a City, State, Country, or Planet.

    Does that sound right? Doesn't seem like cars are at all like TV broadcast signals.

     

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  60.  
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    Anonymous Coward, Apr 23rd, 2014 @ 12:58pm

    Re:

    We will probably watch MAFIAA kill off Aereo and then within a year they will just rip off their idea and launch their own similar service.

    Kill Aero maybe, spend money to add a few more viewers, no way, it would compete the cable companies who are paying them handsomely for privilege of adding viewers to free to air programs.

     

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  61.  
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    Michael Donnelly (profile), Apr 23rd, 2014 @ 12:59pm

    Aereo's counsel missed an easy one.

     

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  62.  
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    Baron von Robber, Apr 23rd, 2014 @ 1:05pm

    Re: Complying?

    Ok let's break this down.
    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?

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

     

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  63.  
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    Baron von Robber, Apr 23rd, 2014 @ 1:06pm

    Re: Re: Complying?

    bah, copyright I meant to type.

     

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  64.  
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    Anonymous Coward, Apr 23rd, 2014 @ 1:09pm

    Doublethink

    This is insane doublethink. When not committing a crime is itself a crime, when not infringing copyright is itself an infringement of copyright, we have entered Orwell's nightmare.

     

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  65.  
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    Anonymous Coward, Apr 23rd, 2014 @ 1:09pm

    Re: Re: Complying?

    You forgot one. Is it ok for someone to lease me the equipment to do all that instead of me having to buy it?

     

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  66.  
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    Anonymous Coward, Apr 23rd, 2014 @ 1:11pm

    The Speed Test

    Do you have a speedometer in your car? Well you are using that to avoid speeding. So you are contorting the speed at which you would normally drive to avoid getting a citation. So by their logic you would be breaking the law.

     

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  67.  
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    That One Guy (profile), Apr 23rd, 2014 @ 1:13pm

    This rot again?

    To save time, and since your arguments here are identical to the ones you posted in another thread, I'll just follow your example and copy/paste my responses.

    ...without compensating the networks and the cable companies who have the transmission rights to that content.

    'Gee, I wonder if that has anything to do with the fact that they're dealing with free, over the air content that was never going to be paid for by the recipient? /s'

    What Aereo is doing is nothing more than your neighbor stealing your car out of your driveway, using it for their personal use, and not compensating you for their use of your car.

    'Not even close. If we're going to compare Aereo to something, compare it to someone gathering up copies of a free newspaper, and distributing it to people who would otherwise not have been able to get it. Yes they might charge for delivering those copies, but they're charging for the time and money it took to get those copies to the customers, not for the newspapers themselves.'

     

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  68.  
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    Mike Masnick (profile), Apr 23rd, 2014 @ 1:13pm

    Re:

    At this point I have to wonder, given how much they HATE the ruling in the Cablevision case, if the plaintiff's didn't use their influence in politics to get an assurance that the Supreme Court would hear the case early on, then have their attorneys sandbag the district and appellate court trials so that they could get it there just so that they could try to get the Cablevision case either overturned or at least severely limited. Given the history of those involved here, I wouldn't put it past them to pull such a stunt.

    Actually, one surprising moment in the arguments yesterday was 1. Justice Kennedy suggesting that they use Cablevision as "binding precedent" even though it's not and 2. ABC's lawyer actually admitting that he thinks the result in Cablevision was right, even if the reasons were wrong.

    This was big on multiple levels. The fact that no one challenged the hypothetical hints strongly that the Justices don't want to overturn Cablevision. Furthermore, having the broadcasters actually concede that the *result* in Cablevision was correct is a huge admission. They've never done that.

     

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  69.  
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    Baron von Robber, Apr 23rd, 2014 @ 1:23pm

    Re: Re: Re: Complying?

    Excellent point.

     

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  70.  
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    DB (profile), Apr 23rd, 2014 @ 1:24pm

    After reading the story and these comments, I have to wonder if...

    "whoosh"

    It may be that the justices are intended their statements to be subtle humor, as well as an exploration of the case merits.

    Pretty much everyone here is scoffing at the idea that complying == circumventing. The justices are smart people that have reached the top of their profession, after having spent their entire career focused on the law. They couldn't possibly have missed this fallacy.

    The only logical answer is that this is dry humor. Followed by 'give us wording that makes what Aereo is doing clearly illegal, without making record stores century-old criminal enterprises'.

     

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  71.  
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    Anonymous Coward, Apr 23rd, 2014 @ 1:27pm

    Re:

    That is the worst analogy I've seen in years.

     

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  72.  
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    Keroberos (profile), Apr 23rd, 2014 @ 2:27pm

    Hey Look. A Logic Chopping Game We Can All Play.

    All I'm trying to get at, and I'm not saying it's outcome determinative or necessarily bad, I'm just saying your legal opinion is based solely on circumventing current legal precedent that you don't want to comply with, which is fine. I mean, that's -- you know, judges do that.

     

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  73.  
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    Anonymous Coward, Apr 23rd, 2014 @ 2:31pm

    Re: Re:

    I wasn't suggesting that SCOTUS was complicit in promising a ruling in their favor, only that the politicians with personal access to the courts acting as a liason to the broadcast companies may have "inquired" about the likelihood of SCOTUS agreeing hear such a case should it come before them and then passing info down the chain such that their lawyers could then make sure it gets there. It's not as if no one had ever brought a case before with explicit plans to get it heard before SCOTUS and set a binding precedent that would be very difficult to overturn. That's what happened with Citizens United.

     

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  74.  
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    Anonymous Coward, Apr 23rd, 2014 @ 2:39pm

    Re: Re: Re: Re: Complying?

    And if access to all of them is locked behind users specific account information that has to be authenticated before the performance that is specifically captured for the individual user such that it guarantees the private access of that user, what kind of twisted definition of "public" are you using?

     

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  75.  
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    Anonymous Coward, Apr 23rd, 2014 @ 2:50pm

    Re:

    The justices are smart people that have reached the top of their profession, after having spent their entire career focused on the law.

    Police Chief: Not Wanting To Talk To Police Officers Is 'Odd'” by Tim Cushing, Techdirt, April 23, 2014

    The only logical answer is that this is dry humor.

     

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  76.  
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    DB (profile), Apr 23rd, 2014 @ 3:13pm

    A police chief in a small town is hardly at the top of his profession, nor likely to well versed in constitutional nuances. The supremes are well aware that what they say and do will influence the country for decades or centuries, unlike a police chief covering for the missteps of his employees.

     

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  77.  
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    Anonymous Coward, Apr 23rd, 2014 @ 3:25pm

    Re:

    The supremes are…
    Do you have any real doubt about how Ruth Bader Ginsburg is going to vote on a copyright case?

     

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  78.  
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    Zonker, Apr 23rd, 2014 @ 3:39pm

    Building a car without seat belts, turn signals, or license plates on the front and back is not street legal. It could be considered unnecessarily complex to add these devices to make a car street legal. Therefore, building a car with seat belts, turn signals, and license plates is clearly circumventing the law.

    To bring a new drug to market, your drug must first be evaluated and tested by the FDA. This is an unnecessarily complex process, therefore attempting to get your drug cleared by the FDA is clearly circumventing the law.

    If your corporation makes a profit in your country, they must pay a tax on their profits. This is unnecessarily burdensome on the corporation, but the law does not tax your corporation on foreign profits. Therefore reporting all profits as being earned in a foreign country with no corporate tax is circumventing the law.

    Which of these is truly "circumventing the law" vs "complying with the law"?

    Building one TV antenna and broadcasting that signal to everyone connected to your cable network is infringing broadcasters exclusive rights (under current copyright law). Attaching one TV antenna to your personal TV to receive the broadcasters signal is not infringing. Although it is unnecessarily complex, each of Aereo's customers rents one TV antenna from Aereo to connect exclusively to their one household. How could this possibly be "circumventing the law" rather than "complying with the law" when this is the only legal way to not infringe on the broadcasters exclusive rights (under current copyright law)?

    Why would you need to pay a licensing fee to rent a TV antenna from Aereo, but not to install one in your own house?

     

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  79.  
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    Togashi (profile), Apr 23rd, 2014 @ 4:15pm

    Re:

    Let's say I'm handing out free cups of lemonade on the sidewalk. I have so much lemonade that I will give you as many cups of lemonade as you want. Someone comes up with a wagon and asks for 30 cups, which I gladly give them. They then wheel their wagon a couple blocks down, where they set up a lemonade stand selling it for 25 cents a cup.

    Where have they broken the law? They have taken something that is freely available in one location and charged to provide it in a different location. Nothing more.

     

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  80.  
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    Anonymous Coward, Apr 23rd, 2014 @ 7:47pm

    Mike, makes an excellent point about how dangerous it is to convict someone for attempting to comply with letter of copyright laws.

    David, Apr 23rd, 2014 @ 12:07pm, also makes a great point about copyleft licensing completely turning the spirit of copyright law, upside down on it's head.

    No matter which way you look at this. Copyright laws are absurd because 'copying' things is how we learn and evolve our skills as a species. All humans copy and learn from their parents.

    To tell each new generation that they're not allowed to "stand on the shoulders of giants", and must begin from scratch, is truly absurd and retards innovation.

     

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  81.  
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    Coyne Tibbets (profile), Apr 23rd, 2014 @ 7:57pm

    To be fair

    People are achingly familiar with [shysters/hucksters/chiselers/charlatans/swindlers/scammers] who use every loophole to get around the law.

    So when someone like this comes around who is just trying to do a legitimate business...legitimately...everyone immediately thinks of those people who are just looking for a clever way to be sleazy.

    Can I see the difference? Yes, I can.

    Lots of other people are having a hard time differentiating this from sleaze.

     

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  82.  
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    Lawrence D'Oliveiro, Apr 23rd, 2014 @ 8:33pm

    Re: compliance and gimmick are not mutually exclusive

    Fine. But so what? Why should that be grounds for prosecuting them?

     

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  83.  
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    JMT (profile), Apr 23rd, 2014 @ 8:51pm

    Re:

    "What Aereo is doing is nothing more than your neighbor stealing your car out of your driveway, using it for their personal use, and not compensating you for their use of your car."

    I can't believe there are still people out there stupid enough to compare removal of a physical object to any form of copyright infringement, let alone a case like this which multiple courts have said is not infringement. You get my funny vote.

     

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  84.  
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    Baron von Robber, Apr 23rd, 2014 @ 9:53pm

    Re: To be fair

    But just about every name you've given do, in general, break a law. Please provide an example with one of the abovementioned that doesn't.

     

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  85.  
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    Anonymous Coward, Apr 23rd, 2014 @ 10:39pm

    Re: Re: Re:

    Note: Doesn't matter, you'll still get fingered for it anyway, and proving your innocence will be routinely interpreted as "resisting arrest".

     

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  86.  
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    Anonymous Coward, Apr 23rd, 2014 @ 11:25pm

    Re: Re: Re: Re: Re: Complying?

    Probably the definition of, 'not a shareholder'.

     

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  87.  
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    btr1701, Apr 24th, 2014 @ 12:01am

    Re: Re: Re:

    No politician has "personal access to the courts", such that they can put cases on the docket. Certainly there no politician that can engineer a grant of certiorari to the Supreme Court.

     

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  88.  
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    Bergman (profile), Apr 24th, 2014 @ 1:47am

    Re:

    Just wait. Eventually the MAFIAA will get around to that too.

    http://www.youtube.com/watch?v=IFe9wiDfb0E

     

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  89.  
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    Anonymous Coward, Apr 24th, 2014 @ 4:34am

    Re: Re: Re: Re:

    No but they run in the some of the same personal circles. The justices were all appointed and confirmed by politicians.

     

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  90.  
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    Eric Stein, Apr 24th, 2014 @ 4:40am

    Re: Re:

    Why wait for the court? Avoid the rush. Don't see the point in following copyright laws now!

     

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  91.  
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    Niall (profile), Apr 24th, 2014 @ 5:28am

    Re: Re: Re:

    And Fifa('s money).

     

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  92.  
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    Niall (profile), Apr 24th, 2014 @ 5:31am

    Re: Re:

    Aye, you have no problem selling anti-personnel mines and letting your citizens break international laws, but gods forbid you might even slightly compromise an international agreement about copywrong!

     

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  93.  
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    Niall (profile), Apr 24th, 2014 @ 5:37am

    Re:

    Oh that's right, anywhere Aereo sets up, everyone else round about who is simply watching free-over-the-air broadcasts mysteriously loses them because Aereo sucks up all the signal?

    Very major analogy fail.

    You might be closer if you mentioned someone taking a picture of your car in its driveway and not giving you a cut, but that's still stretching it.

     

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    Annonimus, Apr 24th, 2014 @ 6:25am

    Calvinball

    I did not know the Supreme Court was aware of the rules for a game of Calvinball.

     

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  95.  
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    Ed Allen, Apr 24th, 2014 @ 12:02pm

    Re: Re:

    You have incorrectly stated that Aero transmit signals. They do not,
    transmit is one sender to potentially many
    receivers, Aero CONVEYS a single stream from their
    eqipment to my house.

    No possibility of anyone else receiving it but me.

    That points to the insanity of defining a point to point
    communication as a transmission simply because it goes
    over the Internet which COULD be reconfigured as a
    broadcast medium.

    That definition makes my mother's land line phone a
    "transmitter". Totally rediculous.

     

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  96.  
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    Justice B. Done, Apr 24th, 2014 @ 12:24pm

    letter vs spirit of law

    fair enough point. but this post is really just a rant complaining that many people -- most people -- think its a fair question to ask whether someone is complying with the letter of the law but violating the spirit of the law.

    and btw, chief justice roberts himself indicated as much and also said he agrees with you, and that "lawyers" figure out ways to wiggle thru loopholes in laws all the time

    so the aereo case really boils down to the court deciding - is there a loophole in copyright law that can be lawfully exploited to make a business repurposing copyrighted material without paying the copyright holders a dime?

    if so, the broadcasters will beg Congress to close the loophole, while threatening to turn off the 10% of the populus that uses broadcast airwaves to get TV. congress will likely comply, quickly, while bending over backwards to make sure "cloud computing" isn't accidentally limited.

    if not, bye bye aereo, and sayonara to the army of schemers and entrepreneurs who would love to be told its ok to build a business to repurpose copyrighted material without paying copyright owners

     

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  97.  
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    Tom Gallagher, Apr 24th, 2014 @ 2:45pm

    Aereo and © Infringement

    I think that this author's comment: "Yes, Aereo's setup is technologically bizarre. But that's because it's doing everything to comply with copyright law. If you have a problem with it, it's not because the company is breaking the law, it's because the law itself is broken." is one of the more intelligent analyses of IP issues I have read in the non-legal press.

     

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  98.  
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    Ed Allen, Apr 24th, 2014 @ 3:38pm

    Re: Re: There is no law against it.

    Actually the media companies do not hide that they believe Cablevision was wrongly decided.

    They would even outlaw DVRs if they could figure out how to do that and still make money from DVD sales and rentals.

    Speaking of DVDs, Walmart, buys DVDs from the producers and then puts them in a
    package deal with a player, amplifier, and monitor. The purchasers of the package
    do not pay anything additional to the producers. That is normal behavior.

    Target buys a thousand DVDs from the producers, hauls them across the mountain into
    the next valley over and sells them for a profit. Still regular behavior.

    Now the producers are paid by local stations for programming which they add advertisements to and resell
    to those advertisers for a profit.
    Then they broadcast that combination into homes in a given area. I think we have been here before.

    Finally along comes Aero, they capture the local station's signal, record it in case
    I want it later, haul it over the mountain and deliver it to my house, not to anybody else.

    For the recording and the hauling I am willing to pay a fee.

    Explain why Aero is stealing and Target is not.

    It cannot be because Aero makes a profit, Target does too.

    It cannot be because the producers were not paid, Target and the local station both pay for their use.

    So, could it be "stealing" because Aero made money without paying the producers a second time ?

    If you have answers for the above I would really like to hear how sensible and fair they are.

     

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  99.  
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    Shadow-Slider, Apr 24th, 2014 @ 4:47pm

    Fair Use

    Many deluded copyright holders believe fair use is a circumvention of copyright.

     

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  100.  
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    Anonymous Coward, Apr 25th, 2014 @ 12:51am

    Aereo was just the inevitable result...

    ... of the decision that Hotels delivering TV signal from a roof antenna to individual rooms qualifies as "public performance.

     

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    Albin, Apr 25th, 2014 @ 6:45am

    Of two minds

    I get the idea that OTA is intended to be "free", aka ad supported, to the public. On the other hand, if I copyright my own content under, say, Gnu Public License it's also free to the public, but if a third party starts to MAKE MONEY from unlicensed redistribution of it they are infringing my copyright and abusing my public service.

    On the one hand, Aereo may be nothing more than an online DVR that users purchase to manage "free" OTA broadcasts and if anything the content networks are getting even more distribution of their ads, and can raise their advertising rates accordingly. On the other hand, Aereo seems to be MAKING MONEY from resale of the content itself beyond simply fee for the service of managing online storage and access.

    I find it an interesting legal case, and not a slam dunk by any means.

     

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

  102.  
    identicon
    Just Another Anonymous Troll, Apr 25th, 2014 @ 10:29am

    An interesting little commentary about copyright law...
    If I store all or part of a movie on an electronic medium without buying a copy, is that infringement?




    If you say yes, you agree that going to a movie theater and remembering the movie is infringement. The brain stores information electronically, so you would be storing all or part of a movie on an electronic medium.

     

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

  103.  
    icon
    beltorak (profile), Apr 25th, 2014 @ 12:02pm

    Re: Aereo was just the inevitable result...

    but wouldn't the defining difference be that the hotel doesn't have a separate antenna for each and every tv?

    or do they?

    [citation please]?

     

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

  104.  
    icon
    beltorak (profile), Apr 25th, 2014 @ 12:04pm

    Re: Of two minds

    > but if a third party starts to MAKE MONEY from unlicensed redistribution of it they are infringing my copyright and abusing my public service.

    No, you are exactly wrong. It is perfectly fine for someone to charge for GPL code. The GPL states that you cannot make others pay you for distributing the same, and you must distribute (or make available) the source code for the binaries you distribute.

     

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

  105.  
    identicon
    Albin, Apr 26th, 2014 @ 10:26am

    Re: Re: Of two minds

     

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

  106.  
    identicon
    Ed Allen, Apr 28th, 2014 @ 11:45am

    Re: Re: Re: There is no law against it.

    I guess no "Aero needs to be shut down" folks can suggest a reasonable aurgument for why they should be criminals and others who do business within the bounds of copyright should be left alone.

    Wow, I did not see that coming ! :)

     

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

  107.  
    identicon
    Anonymous Coward, May 19th, 2014 @ 7:50pm

    Cheap Gimmicks

    '10,000 antennas are a cheap "copyright-avoidance gimmick."'

    Copyright itself is a "cheap gimmick".
    Abolish copyright.

     

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

  108.  
    identicon
    Shawn, Jun 27th, 2014 @ 3:48pm

    Re: Re: Re: There is no law against it.

    Target buys...

    Aereo takes...

    I think I see a big difference here...

     

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


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