Broadcasters' Lawyer Lays Out Every Bogus Trope Possible Against Aereo

from the how-to-be-totally-uninformed dept

Neal Katyal, a former Acting Solicitor General of the US, and (more importantly) a lawyer hired by the broadcasters to help with their case against Aereo, has written one of the most ridiculous opinion pieces yet about Aereo, published over at the Hollywood Reporter. It basically reiterates every bogus copyright maximalist trope there is in this particular fight, and apparently demonstrates that he was paying attention to very different Supreme Court oral arguments than the rest of us.

First, he pulls the trick we discussed recently in which he pretends that complying with the law is somehow circumventing the law. Then he does that thing where he completely hand-waves away the claim that a ruling against Aereo won't impact cloud computing, by just insisting that they're different, without bothering to deal with (as many of the Justices pointed out in the oral arguments) that there's a real problem with declaring Aereo a public performance, as there's no clear way to distinguish it from cloud computing.

But the real problem with Katyal's reasoning is the "but if they were serious they could just get licenses" argument:
Licensed services like Netflix, Amazon and iTunes play by the rules, and that means their services are not at issue here. In fact, these services provide concrete evidence that refutes Aereo's vague threats about "innovation" writ large. These services developed because of licensing – not despite it. And they continue to thrive today, to the benefit of the public and copyright holders alike, because they deliver something valuable to consumers – not just a way to circumvent the law.

Aereo, on the other hand, is an illegitimate, unlicensed streaming service. It grabs broadcasters' signals from the airwaves without paying for them, stores user-specific copies of that programming in its servers, and then delivers that programming over the Internet live or on-demand for a fee. Aereo would prefer that everyone just focus on that second function (storage) but disregard the other two (theft and transmission).
Except that nearly everything above is misleading to inaccurate (sometimes in the extreme). Aereo plays by the rules too -- the rules that allow people to time shift and place shift over the air broadcasting, which is provided for free to the public, supported by advertising (and an enormous grant of free spectrum to the broadcasters from the public, supposedly for the public good). The fact that Netflix, Amazon and iTunes license other content has no bearing on the actual legal issue of whether or not providing the same piece of content to multiple parties (even if they are individual copies) is a "public performance." That some businesses do a different thing another way is not the issue. The issue is how a ruling that this represents a public performance will massively increase liability on any company that stores and transmits the same content to multiple people.

And, Aereo also seems to deliver something valuable to consumers. I've spoken to many Aereo customers and they all absolutely love the service.

As for Katyal's ridiculous claims of "theft" or "grabbing" -- that's just rhetoric used to mislead. These are over the air signals, and it's perfectly legal to "grab" those signals as the Supreme Court made clear in the Betamax case that Katyal must surely know about. Similarly, it's perfectly legal to transmit such content over the internet, via something like a Slingbox, so long as it's done privately by an individual for his or her own account. And that's what Aereo has set up for consumers -- a service to do what is clearly established as legal.
At the hearing, the Justices asked about these critical differences between Aereo and legitimate cloud services. They repeatedly mentioned the line between merely passive storage, on the one hand, and active content-distribution services, on the other. Aereo falls in that second category, which is why this case does not implicate cloud storage services. And it does not have a license, which is why this case does not implicate iTunes, Amazon or other legitimate streaming services on the content-delivery side of the line.
Katyal appears to be under the misconception that the "worries" about how this could impact cloud computing are people worrying about how it impacts iTunes or Amazon Prime's streaming service. They're not. They're worried about how it impacts things like iCloud or Amazon's S3 services, in which people store content on far away servers. Based on the arguments of the broadcasters, Apple and Amazon may be implicated as providing a "public performance" of content that people choose to store and stream from those services -- unrelated to the "licenses" that they have for their other services. It's kind of amazing that Katyal can be so confused about this.
Delivering on-demand streaming of copyrighted programming for a fee is the quintessential public performance.
I store plenty of (authorized) music MP3s on Amazon S3. And I stream from there. I pay Amazon for that service. But Amazon has not licensed those works. Yes, Amazon has licenses for its digital music, but these are not songs purchased from Amazon (some aren't even available on Amazon). But Katyal appears to be claiming that my storing of content and streaming it is a public performance. And that's exactly the problem we're talking about.

Katyal keeps insisting that Aereo is selling the content. He's wrong. They're selling the service of enabling people to access content that is available free, over the air. It's a classic case of ignoring the value of the service, and insisting 100% of Aereo's value is the content.
Much is at stake in the Supreme Court's decision in this case. Broadcasters invest billions of dollars to create, acquire, and distribute the most-watched video programming in the country, and perhaps even the world.
... And then they give it away for free via over the air broadcasts. And nothing that Aereo does impacts that market at all. The broadcasters' real problem, which Katyal doesn't mention because it would expose the sheer ridiculousness of his argument, is that the broadcasters have become fat and happy based on cable and satellite retransmission deals. That's what they're really fighting over, though they don't want to admit it. Notice that nowhere does Katyal admit that all of the content in question is broadcast free over the air? I wonder why...

I recognize that Katyal is a high powered lawyer who used to be the Solicitor General, but the broadcasters really ought to spend their money on someone slightly more convincing.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, May 2nd, 2014 @ 8:09am

    They don't need to convince us.

    They need to bamboozle the SCOTUS with deceptions within fabrications within red-herrings.

     

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  2.  
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    That Anonymous Coward (profile), May 2nd, 2014 @ 8:18am

    I honestly wish that someone would just beat the next person that called it theft.
    I think any lawyer who uses the term incorrectly should be sanctioned and have to take the bar again, as they obviously have failed to grasp a vital concept of the law.

    Theft involves taking something, not making a copy.

     

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  3.  
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    AricTheRed (profile), May 2nd, 2014 @ 8:20am

    It's a salve, you rub it in to the skin.

    And once the stoopid soaks in it is nearly impossible to remove.

     

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  4.  
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    Beech, May 2nd, 2014 @ 8:25am

    Idk why this guy is trying to win the battle of public opinion when the Supreme Court could not care less what the public thinks. Win lose or draw this lawyer's fight is over. He's argued his case, the justices are considering it. Nothing he says now isgoing to matter now. So why say anything?

     

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  5.  
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    Anonymous Coward, May 2nd, 2014 @ 8:37am

    I recognize that Katyal is a high powered lawyer who used to be the Solicitor General, but the broadcasters really ought to spend their money on someone slightly more convincing.
    Considering that their goal is to convince people that it's illegal to sell people access to a antenna if the antenna can pick up signals that were deliberately made publicly available, I think it's safe to say that any resulting legal argument would be farcical at best, and they are therefore essentially getting their money's worth.

    Frankly, I'm more concerned with the fact that every laptop and smartphone in the world has an antenna that can pick up signals if they are deliberately made publicly available. Also many PCs, and probably most cars.
    If a guilty verdict is handed down, just how much of the world's technology will become illegal overnight?

     

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  6.  
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    Michael, May 2nd, 2014 @ 8:39am

    50 years ago, the biggest problem broadcasters were trying to overcome was getting people to buy a television for their home.

    Now that everyone is carrying a television with them in their pocket, all they do is complain about not getting paid for every device that displays their content.

    If it weren't for short-sighted people like Moonves, you would already find broadcast television available on every device with all kinds of new advertising programs available for their commercial sales. I'm still wondering what is taking so long for the "Buy Me" button to appear on my remote control.

     

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  7.  
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    limbodog (profile), May 2nd, 2014 @ 8:47am

    Re:

    Well, yes. Fortunately the SCOTUS is very well versed on technology and tech issues.

    Shit.

     

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  8.  
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    jupiterkansas (profile), May 2nd, 2014 @ 8:47am

    "Licensed services like Netflix, Amazon and iTunes play by the rules."

    In short, they want to write the rules - not the government, not the public, not the hardware manufactures, not the software coders. All control must rest on the content owners.

     

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  9.  
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    Josh in CharlotteNC (profile), May 2nd, 2014 @ 8:49am

    Re:

    They're preparing for round two to kill off Aereo and anything like it.

    They think it's possible that the court will rule Aereo legal under current law. This next step is to get the laws changed, which sometimes needs public opinion.

     

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  10.  
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    Anonymous Coward, May 2nd, 2014 @ 8:59am

    Re:

    So why say anything?

    If the broadcasters expect to lose at the Supreme Court, then their next step will be to lobby Congress for a change to the statute.

    Congress óbelieve it or notó does respond to public opinion.

     

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  11.  
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    Anonymous Coward, May 2nd, 2014 @ 9:24am

    Re: Re:

    Congress óbelieve it or notó does respond to public opinion.

    All governments will respond to those that make enough noise, please do not confuse this with public opinion. Those making the noise often do so in a fashion that makes opposing them socially difficult, like bringing in think of the children, artists etc.

     

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  12.  
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    Anonymous Coward, May 2nd, 2014 @ 9:33am

    Re: Re: Re:

    The correct response to which is to go, "Nope, sorry, not buying it." But moral outrage is the ram to which politicians tend to play the ewe for.

     

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  13.  
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    Eric, May 2nd, 2014 @ 9:45am

    I'm an Aereo User

    I have Aereo and I absolutely love it. Not just for the price but the usability. I went from having Cablevision whose interface was horrendous to Aereo (via Roku) and the interface is so simple. How is it a relatively small company like Aereo can make such a great interface where as a huge company like Cablevision fails miserably? I think i know the answer and it has something to do with giving customers what they want...

    I certainly hope Aereo prevails, but if they don't I can promise the cable industry I will not make me a return to them.

     

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  14.  
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    Anonymous Coward, May 2nd, 2014 @ 10:37am

    Re:

    While CRIMINALLY theft involves taking something (well, not precisely, because criminal conversion is under the theft statutes, and criminal conversion technically does not involve taking anything), in a civil trial, you can pretty much say whatever you like. Attorneys in civil cases frequently use pejorative terms to the extent permitted by the court, and if calling something theft helps their client, that's the term they will use - unless the judge calls them on it.

    Perhaps a bigger point here is that Aereo may not even technically be making a copy. What they appear to be doing is functioning as a repeater, converting one type of signal into another type of signal that is then amplified and transmitted. Of course, I am not that familiar with Aereo, and perhaps they are making a copy, but I thought their service was streaming live broadcast signals, not saving those signals for later transmission. Which way is it? Or is it both?

     

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  15.  
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    kenichi tanaka (profile), May 2nd, 2014 @ 11:04am

    NO matter how much Aereo claims that it's offering a valuable service, the fact remains that it has engaged in copyright theft of licensed content that remains under the control of the broadcasters.

    This is no different than going to the store, purchasing a DVD or a Blu-ray movie, ripping that to your hard drive, and then sharing it online through a filesharing or torrent website.

    Aereo hasn't convinced me that what it has done should project itself from copyright lawsuits. I'm simply shocked that ICE hasn't seized its domain name since it's distributing pirated content. "Seizing" a transmission should automatically be seen by Federal authorities as violating FCC rules and regulations and I sincerely doubt that they have been granted the right to do that either.

     

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  16.  
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    Baron von Robber, May 2nd, 2014 @ 11:19am

    Re:

    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.

    PS, have you not seen that "theft" of copyright doesn't exist. Only does infringing take place. Never in the history of humankind has copyright "theft" ever occured.

     

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  17.  
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    David, May 2nd, 2014 @ 11:26am

    Re:

    Your example is wrong. It would be more like going to the store, purchasing a separate DVD for every person you want to share to, and then only sharing each purchased DVD to the individual it was purchased for.

    If you share to a 100 people, you'll have bought 100 DVD's. Which is very unlike filesharing or torrenting.

     

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  18.  
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    That One Guy (profile), May 2nd, 2014 @ 11:35am

    Re:

    Okay, I've just got to ask, given your continual insistence on your stance here, and how your arguments read almost identical to the broadcasters' arguments, just what stake do you have in this case?

    Is it just a funny coincidence that both you and the broadcasters seem to be working off the same talking points, have you bought in to their arguments, despite those arguments being shot to pieces in the articles and comments on the case, or is it something else?

    NO matter how much Aereo claims that it's offering a valuable service, the fact remains that it has engaged in copyright theft of licensed content that remains under the control of the broadcasters.

    Why yes, the content does remain in their control, which is why their transmissions/broadcasts are completely unaffected.

    As for the 'theft' assertion, tell me, what, exactly is Aereo's service taking from the broadcasters, such that they no longer have it? It's not money, the transmissions are free, the broadcasters were never going to be paid by the recipients anyway.

    This is no different than going to the store, purchasing a DVD or a Blu-ray movie, ripping that to your hard drive, and then sharing it online through a filesharing or torrent website.

    Got tired of being smacked down for the ridiculous car analogy and decided to move on to another ridiculous analogy eh?

    And yet again your analogy fails, if we're talking DVD's, their service would be more like paying someone to go to the store and buy a DVD(ignoring for the sake of the metaphor the content in question is free), giving them the money for their time and the DVD itself, then having them load it to an HD and send it to only you.

    If someone else wants to watch the same movie for whatever reason, they pay for a separate DVD, a separate HD, and get a separate link/signal sent to them.

    "Seizing" a transmission should automatically be seen by Federal authorities as violating FCC rules and regulations and I sincerely doubt that they have been granted the right to do that either.

    So that's what's been causing people across the country to be unable to receive their over-the-air tv, those dirty fiends at Aereo have been taking the transmissions for themselves, and not leaving any for anyone else to watch! /s

     

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  19.  
    identicon
    Anonymous Coward, May 2nd, 2014 @ 11:36am

    I store plenty of (authorized) music MP3s on Amazon S3. And I stream from there. I pay Amazon for that service. But Amazon has not licensed those works.


    This is it right here. They want to double-dip. They want the cloud providers to buy licenses for content that has already been paid for.

     

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  20.  
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    That One Guy (profile), May 2nd, 2014 @ 11:49am

    Re:

    Not only that, they want the cloud providers to pay for content that doesn't even require a license, 'just in case'.

     

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  21.  
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    kenichi tanaka (profile), May 2nd, 2014 @ 12:43pm

    I don't side with either the broadcasters or Aereo but what Aereo has done is violate the rights of the broadcasters. This is no different than distributing pirated content. Aereo is simply trying to argue that it has the right to use that content since broadcasters are using the public spectrum.

    Fact is, Aereo is taking content that is protected by copyright law, by which they have no copyright claim to and stealing that content to rebroadcast it and to make money from it.

    Your argument that buying a DVD for each user doesn't violate copyright law is inaccurate. Aereo is simply storing a copy of copyrighted content for each antennae and then rebroadcasting it. In the end, Aereo is going to lose and they are going to lose big when the U.S. Supreme Court hands down its decision.

     

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  22.  
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    Gwiz (profile), May 2nd, 2014 @ 12:45pm

    Re:

    NO matter how much Aereo claims that it's offering a valuable service...

    The simple fact that people ARE paying Aereo for this service (which is already free if you put up an antenna yourself) seem to indicate it has value.


    ...the fact remains that it has engaged in copyright theft of licensed content that remains under the control of the broadcasters.

    First off, that's not a "fact" at all. That's you projecting. The courts are still deciding this.
    Secondly, infringement is not theft.
    Thirdly, since we are talking about broadcast signals that are transmitted, for free, to anyone with an antenna, how much "control" do the broadcasters have at that point anyways? I can have one TV or I can have a thousand in my house and it still makes no difference.


    Aereo hasn't convinced me that what it has done should project itself from copyright lawsuits.

    Who cares if you are convinced or not? It only matters if the Justices are convinced.


    I'm simply shocked that ICE hasn't seized its domain name since it's distributing pirated content. "Seizing" a transmission should automatically be seen by Federal authorities as violating FCC rules and regulations and I sincerely doubt that they have been granted the right to do that either.

    Wait a minute. Are you seriously advocating that the Federal Government rushes in and shuts down a business based on, well nothing, since it's never been established in a court that Aereo is actually breaking the law? Really?

    You make me wish common sense actually was more common.

     

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  23.  
    identicon
    Anonymous Coward, May 2nd, 2014 @ 12:49pm

    since when has anything to do with the cable guys been anything different to Hollywood and the rest of the entertainment industries? they invented lying and bullshitting! they discovered under the counter dealing! all they want to do, the same as the industries, is remain in the dark ages where they can profit off of the 'encouragement they feed to politicians who are only too pleased to do what is asked of them, for that 'encouragement'! if these industries had to actually compete in the market place, they would be annihilated! why do people spend so much time getting alternatives, rather than legitimate downloads? the industries know what's wrong but refuse to change and adapt. their own loss!!

     

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  24.  
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    Gwiz (profile), May 2nd, 2014 @ 1:01pm

    Re:

    I don't side with either the broadcasters or Aereo but what Aereo has done is violate the rights of the broadcasters.

    In your opinion only. As for me, I'll wait and see what SCOTUS decides.


    This is no different than distributing pirated content.

    Wrong. It's different enough that this issue has made it all the way up to the Supreme Court.


    Aereo is simply trying to argue that it has the right to use that content since broadcasters are using the public spectrum.

    That's not what Aereo is arguing at all. It's arguing that time-shifting and place-shifting are not infringement based on previous court rulings and that it is simply providing a service to do those things.


    Fact is, Aereo is taking content that is protected by copyright law, by which they have no copyright claim to and stealing that content to rebroadcast it and to make money from it.

    You saying something is "fact" doesn't make it so. At all.


    Aereo is simply storing a copy of copyrighted content for each antennae and then rebroadcasting it.

    That's exactly what my DVR does and it's completely legal.


    In the end, Aereo is going to lose and they are going to lose big when the U.S. Supreme Court hands down its decision.

    We'll see. But I tend to disagree based on the fact that 3 out of 4 courts have already found Aereo's setup legal.

     

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  25.  
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    Rikuo (profile), May 2nd, 2014 @ 2:53pm

    Re:

    Just chiming in to say...wow, you're a fucking idiot. Looking at your profile, I see you use many analogies regarding Aereo, like borrowing your car without asking, which of course is a completely broken analogy because you're comparing the use of a physical object to infinitely replicable digital content.
    Oh, just noticed you had a comment defending Prenda of all people. PRENDA?

     

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  26.  
    identicon
    Baron von Robber, May 2nd, 2014 @ 2:56pm

    Re:

    Aw you didn't answer my questions asked previously.

    Please do so, I am curious about what you know and what you don't know about the law and how Aereo works.

     

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  27.  
    identicon
    Hi Troll!, May 2nd, 2014 @ 8:55pm

    Re:

    Kenichi;

    You are either a total idiot or just enjoy seeing your own writing... or both. Your opinions convey little in the way of common sence or comprehension of the subject matter, but I have to say you make me laugh out loud.

    Thanks for the giggle, you can go away now.

     

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  28.  
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    That Anonymous Coward (profile), May 3rd, 2014 @ 1:02am

    Re: Re:

    Theft - Taking an object and depriving the owner of it.
    It's use in these cases is meant to be a base emotional appeal to cloud the actual issues.

    If I take a picture of a car on the street, I have not committed theft of the car... yet this is what they are claiming is happening. Its nonsensical, incorrect, and we have wasted time, effort, money on case after case allowing disingenuous claims to flourish.

    If they function the same as a DVR in the home, what would be the difference?
    I mean the VCR was the Boston Strangler who was going to destroy Hollywood... except that it brought upon a Golden Age of profits. You can use a VCR to record over the air signals and watch them whenever you want as often as you want.
    DVR just like a VCR.
    Aereo a DVR not in the home.
    They could kill Aereo in a heartbeat, by competing. But change is bad and how dare anyone suggest they should have to spend money in the free market when they can use the law to kill a better idea.

    Once upon a time the entire world stopped because Uncle Milty was going to be on tv, at a certain time on a certain day. Killing Aereo is about keeping that model working.
    Consumers want to watch shows when they want, how they want, where they want. This is a fight over allowing a media cartel to have the right to control what people do.
    If you order a steak and they instead send you fish, they have failed to give the customer what they wanted.
    This is making sure they maintain the right to ignore consumers, and grant them veto power over anything changing ever.

     

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  29.  
    identicon
    Bob Zeryunkel, May 4th, 2014 @ 2:06pm

    Re:

    Kenichi your argument is based on a massively incorrect assumption. Broadcast TV, like the kind that Aereo provides access to, is wholly unlike DVD or Blu-ray movies. Broadcast television, including any and all content contained therein, is automatically licensed to the receiver. The license is an agreement that the station owner makes with the Federal Gov't, via the FCC, to provide content/news/local interest to the American public for free. Seriously, look it up.

    Aereo doesn't need a license because the person receiving the content already has a license. There is no need to obtain a second license to receive the exact same content through the exact same distribution channel...free over-the-air broadcast.

    The real theft is the retransmission consent dollars that cable subscribers have to pay to the broadcasters. It's essentially a tax on the 90% of Americans that have some sort of video provider. It's ridiculous that the exact same content stream has a secondary cost just because you can afford cable.

     

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  30.  
    identicon
    Anonymous Coward, May 5th, 2014 @ 3:27am

    Re: Re:

    TL;DR
    kenichi tanaka is a fucking idiot.

     

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  31.  
    identicon
    Pragmatic, May 6th, 2014 @ 7:30am

    Re:

    Kenichi, Aereo is taking FREE content and re-broadcasting it, violating no one's rights because the broadcasters aren't owed any money. They are not entitled to double-dip, which is what this is about.

    Since when did "I wanna!" automatically become a right to what you want?

     

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


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