If You Lament The State Of Politics Today, Lament The Loss Of Aereo

from the lessons-for-Locast dept

Disclaimer: I did a teeny bit of legal work on a teeny part of Aereo's defense against the litigation onslaught seeking to obliterate it. But that's not why I think the Supreme Court's decision enabling that obliteration was terrible. On the contrary, it's why I wanted to work on the defense at all, because it was always apparent that trying to use copyright to crush Aereo was a terrible idea that would have terrible consequences. And time has, of course, born this prediction out.

It had never made sense why all these TV stations would be suing Aereo in the first place. After all, isn't the thing that TV stations always want a larger viewership? With a larger viewership they can charge more for ads and make more money. So a service that helps them get that larger viewership (and at no cost to themselves) seems like something they should actually be glad to have. In any case, it was certainly quite odd to see them resent something that helped connect them with bigger audiences beyond what their broadcast signal could manage.

And it made even less sense for a public television station like WNET to be part of any of these lawsuits. Commercial profit was never supposed to be its goal. Instead, pledge drive after pledge drive has always begged the public for the funds necessary to show its programming. Yet there it was, now trying to eradicate a service that helped people actually watch that programming. Which necessarily prompts the question of why anyone should ever bother to give money to WNET ever again if it was so bound and determined to limit the number of people who could benefit from it.

Anyway, while the fight against Aereo made no sense, and the US Supreme Court decision killing it made even less, the result is that today we live in a world without it, where the reach and influence of local TV stations has effectively been damned to the geographical limits of their signal strength. And this pointless and artificial limitation has had a cost.

Because think about what has been happening in recent elections: results end up hyper-localized, with impenetrable divisions between red and blue states, urban and rural regions, large markets and small, etc. At least in the story of the country mouse and city mouse they both got to visit each other and learn what each other's lives were like. But thanks to the Supreme Court, now it is so much harder for Americans everywhere to learn about what life is like outside the areas where they live.

Aereo helped build connections between these places by overcoming the barriers imposed by distance. Instead of people only being able to see the broadcasts they could receive on their own antennas, it gave them a window into other communities by allowing them to essentially rent antennas in these other places and experience the broadcasts aimed for people there. Certainly if they'd rented an entire house in these other places there would have been no issue with them using its antenna to watch these broadcasts. So it hardly follows that it should be illegal if they simply saved the enormous expense of moving to that other place and instead only rented the antenna. (Which, despite the Supreme Court's technical misunderstanding about what Aereo did, is exactly what Aereo – and, for the past year or so, now Locast – actually did.)

Especially not when, as described above, it would have been good for those stations. And especially not when it also would have been good for the nation. It does us no good to remain little regional enclaves unable to find common ground between each other. Sharing in each other's broadcast media would go a long way to bridging those geographically-enforced cultural gaps. Indeed, it would seem to vindicate the very goals of copyright, to promote the progress of arts and sciences, to ensure that local insight could be efficiently exchanged among these regions. Instead, however, the Supreme Court, in its decision to contort copyright law to effectively ban Aereo, doubled-down on the physical restrictions curtailing that exchange with artificial legal barriers that can only serve to enforce the effects of that distance upon the national electorate. And our democracy has been paying the price for this decision ever since.

Perhaps things can be different with Locast. While too new to have been able to have had as much impact on national political culture as a mature service would have had by now, since last year it has tried to thread the confusing needle the Supreme Court set out for these sorts of antenna-rental services. As the courts now stand to review the legal questions they raise again, one can only hope the courts better understand this time around the public interest in knowledge exchange that's at stake, which copyright law is supposed to advance, not smother.

Filed Under: broadcast tv, copyright, divisions, local news, supreme court
Companies: aereo, locast


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  1. identicon
    Pixelation, 12 Aug 2019 @ 4:10pm

    I wonder

    Would the Aereo decision make it technically illegal to use a signal booster for over-the-air tv signals?

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

  2. icon
    Coward Anonymous (profile), 12 Aug 2019 @ 4:38pm

    Re: I wonder

    They probably would, the benefits to their audience would be similar in this case too.

    I can´t lure out what game the "rights holders" are playing, and who benefits the outcome?

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

  3. identicon
    Anonymous Coward, 12 Aug 2019 @ 5:06pm

    Re: Re: I wonder

    Their game is to be an unassailable cartel. Just like always they will ruin everything around them while failing to protect from what they fear.

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

  4. icon
    JdL (profile), 12 Aug 2019 @ 5:35pm

    "the result is that today we live in a world without it, where the reach and influence of local TV stations has effectively been damned to the geographical limits of their signal strength."

    The word "damned" implies, you know, eternity. In the author's fantasy there will never, ever, be some other means by which local TV stations will expand their reach? That sounds to me like empty fear-mongering.

    Perhaps if Aereo had worked with the stations from the beginning, they would never have landed in court. Does the author sneer at that approach?

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

  5. identicon
    Anonymous Coward, 12 Aug 2019 @ 5:39pm

    Re:

    When you say "worked with teh stations", you mean paying them money to "re-transmit" their freely-available signal?

    The entire point is there shouldn't have been a limit here to begin with.

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

  6. identicon
    Pixelation, 12 Aug 2019 @ 5:50pm

    Thank you SCOTUS

    They are making sure we have less advertising to be forced to watch.

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

  7. identicon
    coward (anon), 12 Aug 2019 @ 5:59pm

    You've missed the realities of how local TV stations work

    Local TV stations license their content from one or more networks and those licenses specify the region (the DMA) that the station can broadcast to. If I'm allowed to watch WCBS (New York) and their ads in Los Angles then I won't be watching the LA affiliate KNBC (and their ads) but I will be watching programming paid for by WCBS. The advertisers pay for local (DMA) coverage and New York ads are not applicable to Los Angeles viewers. The satellite services first ran into this where they tried broadcasting a single CBS feed to all of the US. Instead they were forced to broadcast the local CBS feed to each DMA. There is an exemption for people who don't have a local CBS station so they can get one of the major CBS affiliates.

    This is the way that all of the affiliate contracts and businesses are structured and all of the broadcast, cable, satellite, and streaming services respect these rules. Aereo upset that balance by not playing by the rules that everyone else has to follow. It may not make any technical or logical sense that Aereo was illegal, but it violated business conventions and contracts.

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

  8. identicon
    Anonymous Coward, 12 Aug 2019 @ 6:08pm

    Re:

    Did you actually have a point or did you just want to bitch and moan?

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

  9. identicon
    Anonymous Coward, 12 Aug 2019 @ 6:20pm

    Re: You've missed the realities of how local TV stations work

    To add to that, local stations typically make a lot of money from the re-transimttions fees they charge cable/sat providers for the distribution rights to the station's content. If the local stations let Aereo re-transmit their broadcast for free then Comcast, Spectrum, AT&T, etc., will come knocking at the door asking, "Why are you charging us re-transmission fees,but you are letting Aereo have it for free?" and/or, the cable/sat companies will ape what Aereo is doing, stop paying the re-transmission fees, and say 'Hey, if Aereo can do it, so can we." At which point the broadcasters will end up suing everyone anyway.

    It's been a while, since I've looked into the Aereo case, but from what I remember a lot of it stems from distribution rights that are pretty much settled law. Ex. do I have the right to watch an NFL game at home and/or re-broadcast it for private use (think Sling)? Sure. Do I have the right to publicly rebroadcast an NFL game across the globe? No. Do I have the right to rebroadcast an NFL game for profit/commercial use? No.

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

  10. identicon
    SirWired, 12 Aug 2019 @ 7:04pm

    Aereo made sense within the context of the law around cable fees

    Let me start by saying that the law allowing re-transmission fees to be charged within a station's service area are stupid. A public broadcast license should carry with it a waiver of the ability to charge anybody (within the licensed service area) a cost to access it, no matter how they receive the signal.

    But within the context of that crappy law, the Aereo decision made sense.

    Aereo's infrastructure was a cumbersome, expensive, kluge that existed solely to create a de-facto cable network that didn't pay the fees cable providers must pay. Think of it as the copyright equivalent of tax shelters. (Which are disallowed if they consist of transactions that are of no substance and make no sense except for their utility as a tax-avoidence measure.) Aereo's setup (and it pains me to type this) put the cable/satellite providers at an unfair disadvantage.

    Again, let me emphasize that the correct fix is to get rid of re-transmission fees. But until that happens, I think the Supreme court made a defensible decision that Aereo qualified as a cable system within the context of the law requiring those fees.

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

  11. identicon
    Anonymous Coward, 12 Aug 2019 @ 7:35pm

    Re: Aereo made sense within the context of the law around cable

    But, just to follow through on your point, if the court had ruled in favor of Aereo, wouldn't that have effectively resulted in getting rid of re-transmission fees? Every cable operator could then setup a series of antennas and replace their existing channels with over the air tuned channels from the providers.

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

  12. identicon
    SirWired, 12 Aug 2019 @ 7:55pm

    Re: Re: Aereo made sense within the context of the law around ca

    I suppose so, but given the clear Congressional intent, the SCOTUS is not generally inclined to render them moot Because Reasons.

    Congress can certainly write a law to override a SCOTUS decision Because Reasons, (that is, in fact, where the awful x-mit fee law comes from), but the reverse is not generally true.

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

  13. icon
    Crookshanks (profile), 12 Aug 2019 @ 8:56pm

    Re: Re: Re: Aereo made sense within the context of the law aroun

    "Because Reasons" is pretty straightforward. SCOTUS can't moot an Act of Congress unless it violates the US Constitution in some fashion. Barring that circumstance, a court case generally comes down to the reading of the legislation in question and the intent of the legislative body when it wrote said legislation.

    Aereo was engaged in interstate commerce and Congress has the authority to regulate copyrights, so the question of Congressional power was never in doubt, only intent. When they lost they could have petitioned Congress to re-write the laws and if successful the SCOTUS case would have been moot.

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

  14. identicon
    Anonymous Coward, 12 Aug 2019 @ 10:24pm

    Because think about what has been happening in recent elections: results end up hyper-localized, with impenetrable divisions between red and blue states, urban and rural regions, large markets and small, etc. At least in the story of the country mouse and city mouse they both got to visit each other and learn what each other's lives were like. But thanks to the Supreme Court, now it is so much harder for Americans everywhere to learn about what life is like outside the areas where they live.

    It's not a bug, it's a feature!

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

  15. identicon
    Rekrul, 13 Aug 2019 @ 2:07am

    Things involving copyright today rarely make sense. I've seen companies file copyright notices to get copies of commercials taken down from YouTube. Commercials are advertising and isn't the goal of advertising to reach as many people as possible? So how does it make sense to have commercials taken down from a platform that is hosting them for free and showing them to a worldwide audience?

    I've seen adult content producers threaten lawsuits against people who post their free samples on the net.

    Copyright law needs an enema.

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

  16. identicon
    Anonymous Coward, 13 Aug 2019 @ 5:12am

    The law says any non profit can broadcast over the air signals ,eg nbc, abc, cbs,
    the spectrum is a free gift given to over the air tv networks,
    so it goes both ways .
    They owe the public the right to view their content if its over the air .
    locast is a non profit that takes donations .
    it has a strong case.
    Maybe the tv stations do not like it cos a free service competes with
    their streaming services and hulu .
    But the all show ads ,so they should welcome more potential viewers .

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

  17. icon
    nasch (profile), 13 Aug 2019 @ 6:57am

    Re: You've missed the realities of how local TV stations work

    it violated business conventions and contracts.

    If that's all it was, then the Supreme Court ruled incorrectly, because business conventions are not legally binding, and Aereo was not a party to those contracts.

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

  18. icon
    nasch (profile), 13 Aug 2019 @ 6:59am

    Weak case

    I think you have failed to demonstrate your case that national politics would be significantly different if Aereo had been decided differently. Maybe it would have, but I don't see any evidence, just conjecture.

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

  19. identicon
    nae such, 13 Aug 2019 @ 7:45am

    paved with good intentions?

    that may be what was meant, but i do not think it means what you think it means. at least not all the time.

    damn verb

    \ ˈdam \

    damned; damning \ ˈda-​miŋ \

    Definition of damn

    transitive verb

    1 : to condemn to a punishment or fate especially : to condemn to hell

    2a : to condemn vigorously and often irascibly for some real or fancied fault or defect damned the storm for their delay
    b : to condemn as a failure by public criticism

    3 : to bring ruin on

    4 : to swear at : curse —often used to express annoyance, disgust, or surprise

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

  20. identicon
    Michael, 13 Aug 2019 @ 8:24am

    Re: Re: I wonder

    The game is holding onto their business model.

    Local broadcasting is big business on two avenues.

    First, OTA broadcasting by local affiliates makes a ton of money selling ads. The ads are targeted to a specific region (making them more effective) and the content creators and affiliates would have to really change things to deal with cross market promotion.

    Second, where people cannot get OTA broadcasts, the cable company makes a lot rebroadcasting these channels. The cable company pays the affiliate and the affiliate pays the content creators.

    Aereo changed the money flow and the advertising model enough that they would at least have had to adjust their processes. Just changing how local affiliates sold advertising could cost billions.

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

  21. icon
    Thad (profile), 13 Aug 2019 @ 8:51am

    Re:

    The word "damned" implies, you know, eternity.

    If that were true, then there would be no need for the phrase "eternal damnation"; it would be redundant.

    If you were to check the dictionary, you'd find that "damn" can be used as a general term for condemnation. As in "damn with faint praise".

    But since you're still having trouble figuring out how to find the name of the person who wrote the article, I can see how looking words up to determine their common meanings might be a little over your head.

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

  22. identicon
    Anonymous Coward, 13 Aug 2019 @ 11:11am

    Re: Aereo made sense within the context of the law around cable

    This, however, ignores Aereo II, where Aereo tried paying the re-transmission fees and got told to sod off anyway.

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

  23. identicon
    In the Know, 13 Aug 2019 @ 11:24am

    FWIW, Aereo never allowed subscribers to watch out of market. It was geo-located to only enable reception of channels that you would receive if you lived in that market. So, you couldn't watch LA television stations in New York City. And as a result, it did not upend the local advertising model. In fact, several local stations filed amicus briefs in support of Aereo's efforts because they recognized that it was expanding their viewership + Nielsen had begun to measure that viewership and share that data.

    I don't disagree with the author's premise that consumers are worse-off without Aereo, but her premise is flawed, since Aereo never enabled out of market viewing.

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

  24. identicon
    Anonymous Coward, 13 Aug 2019 @ 11:40am

    Re:

    Wait just a gosh darn moment....

    You're telling me that there is "free porn" on the Internet?

    Would it be too crass to say, "citation needed"?

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

  25. identicon
    Anonymous Coward, 13 Aug 2019 @ 11:43am

    between the lines

    "Instead, however, the Supreme Court, in its decision to contort copyright law to effectively ban Aereo, doubled-down on the physical restrictions curtailing that exchange with artificial legal barriers that can only serve to enforce the effects of that distance upon the national electorate. And our democracy has been paying the price for this decision ever since."

    Good thing there is no such thing as conspiracy eh.
    Otherwise, this might start to look a little bit like "Divide and Conquer" :)

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

  26. identicon
    Anonymous Coward, 13 Aug 2019 @ 12:30pm

    Re: Re:

    For once, 'Google it yourself', seems like the appropriate answer.

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

  27. identicon
    Anonymous Coward, 14 Aug 2019 @ 1:08am

    Am thinking author meant "damned". Yet as mentioned in a previous comment, Aereo geofenced to the subscriber's local market.

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

  28. icon
    sophocles (profile), 14 Aug 2019 @ 9:37am

    aereo

    Cartefone. Mutatis Mutandis.

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

  29. identicon
    Anonymous Coward, 14 Aug 2019 @ 7:47pm

    "Technical Misunderstanding"?

    I'm not buying that for a moment. They're not that stupid. But they do apparently think everyone else is stupid enough to believe them.

    Fuck those dishonest assholes.

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


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