Broadcasters And Cable Companies Trying Harder Than Ever To Annoy Paying Customers With Ugly Public Contract Disputes

Culture

from the everybody-loses dept

We’ve already noted how the retransmission fee disputes between cable companies and broadcasters have grown significantly more annoying over the last few years, as broadcasters seek out higher and higher rates to prop up the unsustainable current TV ecosystem. These fights have become a master class in how to piss off your (already quite annoyed) customer base during rate negotiations, with paying TV customers being bombarded with ads, TV tickers, and a bevy of lame websites by both sides trying to direct consumer outrage toward the other guy. Customers who happen to get broadband from a TV company engaged in one of these fights have also recently started to enjoy having access to online content blocked, even if they subscribe to TV services through another operator.

While broadcasters (especially sports programmers) own the lion’s share of the blame for the soaring rates, neither side is blameless. Cable operators will blame broadcasters with one breath, and in the very next hit consumers with their own assortment of higher cable modem rental fees, more expensive DVR and set top rental charges, or strange and obnoxious new below the line fees. Once both sides spend a few months publicly sniping at one another and bombarding consumers with artificial concern for soaring prices, they’ll strike a confidential agreement and quite happily raise consumer rates in unison. Cable TV customers get to pay for the honor of the entire experience.

AMC has recently ramped up their use of this tactic, blasting consumers with tickers and ads not only after contract negotiations break down, but months before current contracts expire. AMC repeatedly warned viewers of the latest “The Walking Dead” episode that DirecTV wasn’t bowing quite deeply enough during efforts to renew a contract expiring at year’s end, and therefore consumers might lose access to their favorite content:

During the Nov. 2 premiere episode of The Walking Dead, AMC began alerting DirecTV subscribers via commercials and graphic snipes that their ability to watch cable’s top series, and TV’s leader among persons 18 to 49, could be compromised…”DirecTV has not engaged in meaningful negotiations with us, which leaves us to doubt whether a timely renewal is possible,” (a statement declares).

Because bothering you at home during your favorite shows isn’t enough, Viacom recently got the great idea to take their feud with small cable operator Suddenlink on the road, hiring actors dressed up as the Teenage Mutant Ninja Turtles to help educate kids and parents during a Charleston-area homecoming celebration:

Viacom has enlisted Nickelodeon?s Teenage Mutant Ninja Turtles to help reunite Suddenlink customers with some of the characters they might be missing since losing access to Viacom channels in early October. The turtles were scheduled to make an appearance at Capital High School?s homecoming game Friday night at University of Charleston Stadium. The move, Viacom spokesman Mark Jafar said, is intended to let area customers know the company is still thinking of them.

Because nothing quite says, “I’m thinking about you,” like costumed turtles trying to offload blame for your own obnoxious prices hikes, right?

Of course this attempt to generate consumer outrage on the part of broadcasters only works if consumers actually miss your content, something that’s only going to happen less as alternatives to cable expand. When DirecTV customers recently lost access to The Weather Channel during a contract dispute, it turned out that customers really didn’t miss the channel all that much because the channel’s quality had eroded substantially and many users had already shifted to getting their weather online. It’s also worth noting that some small and mid-sized cable operators, unable to afford these endless rate hikess, are no longer offering cable TV and simply selling broadband.

Cable company executives spend a lot of time publicly wondering why younger cord cutters can’t seem to see the incredible value in traditional cable television, oblivious to the fact that annoying paying customers goes a long way to explaining it. These are the same companies and executives who in a few years will stare dumbly at their shoes wondering how they failed to keep pace with evolution in Internet-based television, and these increasingly annoying and loud contract disputes are the last, sad gasps of a dying dinosaur.

Filed Under: broadcasters, cable, customers, fights, networks, retransmission, tv, walking dead
Companies: amc, viacom

Judge: The Supreme Court Has Said Aereo Must Die, So Go Die

Copyright

from the bye-bye-aereo dept

This isn’t a huge surprise, given Judge Alison Nathan’s recent comments during the Aereo hearing, but Judge Nathan has now basically granted the networks what they want — a pretty broad injunction (pdf) against Aereo.

Judge Nathan doesn’t buy the “okay, the Supreme Court said we looked like a duck, so now we’ll pay like a duck” argument.

To begin with, Aereo’s argument suffers from the fallacy that simply because an entity performs copyrighted works in a way similar to cable systems it must then be deemed a cable system for all other purposes of the Copyright Act. The Supreme Court’s opinion in Aereo III avoided any such holding.

[….]

the Supreme Court in Aereo III did not imply, much less hold, that simply because an entity performs publicly in much the same way as a CA TV system, it is necessarily a cable system entitled to a § 111 compulsory license…. Stated simply, while all cable systems may perform publicly, not all entities that perform publicly are necessarily cable systems, and nothing in the Supreme Court’s opinion indicates otherwise.

The court also makes quick work of Aereo’s DMCA defense, noting that Aereo never even bothered to make a complete showing for how it could possibly be eligible for the DMCA’s safe harbors. The judge doesn’t fully grant the networks’ request, but comes pretty close.

Therefore, while Plaintiffs may have a viable argument that even Aereo’s fully time-shifted retransmission of Plaintiffs’ copyrighted works violates Plaintiffs’ public performance right, the Court will not reach the issue at this preliminary stage of the litigation. Plaintiffs will be held to their earlier decision, strategic or otherwise, to seek a preliminary injunction limited in scope to enjoining retransmission of their copyrighted works while the works are still being broadcast.

Likewise, Aereo cannot limit the scope of the preliminary injunction to anything short of the complete airing of the broadcast despite its contention at oral argument that the Supreme Court intended “near-live retransmission” to mean something less than a ten-minute delay. See, e.g., 10/15/14 Tr. 27 :22-24 (“So that nothing is transmitted within ten minutes of the beginning of the program, for example. That would be one way theoretically to handle it.”). The preliminary injunction that was before the Supreme Court contemplated enjoining retransmission of Plaintiffs’ copyrighted works while the works are still being broadcast and that is the injunction that will issue now. The questions involving the scope of the permanent injunction that Plaintiffs seek in this litigation can be addressed quickly, and finally, by this Court in short order following the close of discovery. As a matter of sound case management, the Court declines to address the broader scope question now, before the factual record is closed, and without the benefit of fuller briefing on the matter.

In short, it’s what was said at the hearing last week: the Supreme Court made it pretty clear that Aereo should die, so the judge is going to help make that happen.

Filed Under: alison nathan, cable, copyright, networks
Companies: aereo, fox

Leaked TPP IP Chapter Would Lead To Much Greater Online Surveillance… Because Hollywood Still Hates The Internet

Copyright

from the shameful dept

We already wrote a big piece about the latest leaked copy of the Trans Pacific Partnership (TPP) agreement text. However, there were a few additional areas in the leaked text that deserve further scrutiny, so we’ll be having a few more posts. One significant concern is how the TPP is likely to lead to much greater surveillance by ISPs on your online surfing habits — all in the name of “copyright” of course:

Draft rules under negotiation would impose on Internet service providers a legal obligation to fight against online copyright infringement. This obligation is embodied in several provisions, which would require, for example, ISPs to communicate to their users any supposed infringement committed through their accounts, take down from the Internet information that supposedly infringes on copyright, and collect information that allows identification of users that supposedly have infringed the law.

While the text of the actual agreement sounds like it’s just internationalizing the DMCA (already problematic), it’s actually worse. Subtle language choices make a big, big difference.

First, the TPP includes provisions that would extend spying obligations not only to entities that provide Internet services, but to ?any person,? thus, not only Internet-related companies would be required to enforce the law, but ?any person,? whether human or otherwise. Rights holders would likely interpret this obligation as applying to the manager of a free-wifi zone at Starbucks or your favorite neighborhood cafe, to public libraries and schools, as well as to that neighbor of yours who shares her wifi by keeping it accessible and open.

Second, TPP provisions do not seem to limit this spying to the Internet. Instead they refer to online providers, which may extend the scope of the law to other digital networks, such as intranets and private networks. What does this mean? It means that not only ISPs would be spying on you by collecting user data to protect Hollywood?s copyrights, but also other providers of online services, like the private network you use at your workplace, at your university, or even at your kid?s school, even if those networks do not provide actual access to or from the Internet.

Although the TPP states that Internet service providers would not be required by law to ?monitor? users, it encourages this practice. Therefore, the TPP would leave open the door for private agreements between copyright holders (such as the Recording Industry Association of America and the Motion Picture Association of America) and Internet companies for enforcing the law against Internet users (for example, see the Center for Copyright Information). This raises concerns about powerful content industry players working together to promote abusive practices to enforce their interests against supposed infringers, since, in order to prevent any liability, online service providers may collaborate with rights holders to enforce copyrights beyond what is required by the law.

It’s that last part that is the most troubling. Over the last few years, after Hollywood lost the SOPA fight and realized that legislation was more difficult, it’s now seeking these so-called “voluntary” agreements — even when they’re really done by the government with the threat of regulations if an agreement isn’t reached. These kinds of campaigns are hardly “voluntary” in reality, and are generally designed to get Hollywood everything it wants without having to through any sort of democratic process. Kind of like trade agreements.

Is it any wonder why the USTR has been so adamant about keeping the details of this agreement a secret?

Filed Under: copyright, infringement, internet, liability, networks, surveillance, tpp, ustr, voluntary agreements

CBS Loses Lawsuit Brought By Podcast Patent Troll, But It's Not Over Yet

Patents

from the not-over-yet dept

For a while now, we’ve been following the saga of Personal Audio, the patent troll who argues that patent 8,112,504 covers podcasting and all other “episodic” content delivered over the internet. There are all sorts of problems with this claim, not the least of which is how Personal Audio was able to make “changes” to the patent long after podcasting had become popular in order to make it look more like the patent covered the concept. While Personal Audio agreed to drop its lawsuits against individual podcasters, it kept its case going against the big broadcasters: CBS, NBC and Fox.

The trial (in East Texas, of course) for CBS came first and the jury sided with Personal Audio, because that’s how East Texas patent juries typically roll. In a moment of semi-kindness, the jury awarded Personal Audio $1.3 million, rather than the nearly $8 million they supposedly requested. This story is really just a stepping stone, however. CBS has made it clear that it will appeal the case to CAFC, and given how software/business method patents are getting tossed out left and right these days, the company has a decent chance of prevailing. Meanwhile, the EFF reminds us that it’s still working hard to invalidate the patent at the Patent Office, which would help accelerate the process of killing off these bogus lawsuits. Also, while chances are the jury verdicts for NBC and Fox won’t be that different, perhaps an East Texas jury will actually get a clue one of these days…

Filed Under: episodic content, networks, patent troll, patents, podcasts
Companies: cbs, personal audio

As Expected, Aereo Pleads Its Case For Survival

Copyright

from the cable-company dept

Aereo is back in a district court trying its “okay, fine, you say we look like a duck, we’ll act like a duck” explanation so that it can stay in business and pay the statutory rates for a cable company. As you hopefully know by now, this is in response to the Supreme Court’s “you’re a cable company!” ruling. The broadcasters, of course, just want Aereo to die, so they claim that even if the Supreme Court declared it a cable company, the company still can’t pay statutory rates. Aereo tried to skip the district court and go straight to the appeals court, but that attempt was (probably rightfully) rejected recently, so now it’s back at the district court, once again making the case for it being a cable company.

Its key argument is, basically that, during oral arguments, Justice Sotomayor more or less said if the Court finds Aereo to be a cable company, then it could just pay Section 111 statutory fees and be legal.

JUSTICE SOTOMAYOR: . . . But I look at the definition of a cable company, and it seems to fit. . . . [Aereo] [m]akes secondary transmissions by wires, cables, or other communication channels. It seems to me that a little antenna with a dime fits that definition. To subscribing members of the public who pay for such service. I mean, I read it and I say, why aren’t they a cable company?

MR. CLEMENT: Well, Justice Sotomayor, a couple of things. First of all, I mean, I think if you’re?if you?re already at that point, you?ve probably understood that just like a cable company, they?re public?they?re publicly performing and maybe they qualify as a cable company and maybe they could qualify for the compulsory license that’s available to cable companies under Section 111 of the statute.

JUSTICE SOTOMAYOR: But it just gets it mixed up. Do we have to go to all of those other questions if we find that they?re a cable company? We say they?re a c[]able company, they get the compulsory license.

At the time, most folks kinda wondered why Sotomayor was going off on this tangent, rather than on the key issues related to the case, concerning the public performance right. What people didn’t expect was that the Court would come up with its wacky “looks like a duck” test. But since it did, it certainly seemed to imply that Aereo could just get the compulsory license — which it’s now seeking to do. The company further argues that Justice Breyer, who authored the majority decision, fretted during oral arguments that it would be problematic if Aereo were not allowed to get a compulsory license:

JUSTICE BREYER: Once you take them out of the compulsory licensing system, they’re going to have to find copyright owners, who owns James Agee’s pictures? Who owns something that was written by?like a French silent film in 1915? I mean, the problem is that they might want to have perfectly good things that people want to watch and they can’t find out how to get permission. That is a problem that worries me and it worries me again once you kick them out of the other systems.

Aereo also counters the broadcasters argument that the ivi ruling says that online streaming services can’t qualify as cable companies for statutory rates doesn’t apply here. Earlier, Aereo argued that the Supreme Court ruling effectively overturned the ivi ruling — an argument that makes a lot of sense. But here, Aereo goes even further, noting some key differences between ivi and Aereo, including a pretty big one: ivi was “geographically unbounded.” That was a key part of why ivi lost, and Aereo notes that its service is different, in that it offered a geographically-specific service.

First, the technology at issue in ivi involved geographically unbounded transmissions, which the Second Circuit noted was ?vastly different? from the technology in Fortnightly and Teleprompter…. By contrast, the Supreme Court found that, with respect to ?Watch Now,? Aereo is ?overwhelming[ly] like[]? and ?highly similar? to the technology in Fortnightly and Teleprompter…. As a result, this case is factually distinguishable from ivi on the very point that drove the Second Circuit?s decision. Indeed, the unrestricted nature of ivi?s transmissions was the determinative fact for the Second Circuit, which noted that Section 111?s compulsory license scheme was intended to support local market?rather than national market?systems…. As a result, the court found that ivi?s nationwide retransmission did not seek to address the important issues of availability of local over-the-air television signals, and it was therefore not the type of service Congress intended the compulsory license to cover…. Because Aereo?s ?Watch Now? technology does not give its subscribers access to broadcasts outside of their home DMA, and instead gives only geographically-restricted access (with and through corresponding local physical antenna facilities), and because (as the Supreme Court found) the technology is ?virtually identical? to the technology Congress addressed in the 1976 Amendments, Aereo?s ?Watch Now? technology is not governed by ivi.

Aereo makes another interesting argument for survival as well. Even if it doesn’t qualify for Section 111 compulsory rates, it should still be allowed to keep its “Watch Now” feature working, because of the DMCA. Basically, it’s saying that even if the DVR functionality is deemed infringing, it has a stronger argument around the live streaming, based on the DMCA. All the parenthetical quotes supporting this are from the Supreme Court’s ruling…

If the Court concludes that Aereo is not entitled to a Section 111 license, a preliminary injunction should still not enter because Aereo is entitled to the 17 U.S.C. § 512(a) [DMCA] safe harbor because its ?Watch Now? function is a ?transitory digital network communication.? Each of the Section 512(a) elements is satisfied and undisputed. First, the transmissions of the material are initiated by or at the direction of a person other than Aereo…. (?Aereo?s system remains inert until a subscriber indicates that she wants to watch a program.?). Second, the transmission, routing, and storage of material are carried out through an automatic process, without selection of the material by Aereo…. (?in automatic response to the subscriber?s request?); … (agreeing with dissent that Aereo does not ?select? the content). Third, Aereo does not select the recipients of the material, except as an automated response to the user…. (?When an Aereo subscriber selects a program to watch, Aereo streams the program over the Internet to that subscriber.?). Fourth, no copy of the material transmitted is made accessible to anyone but the user who made it, and no ?Watch Now? copy is kept for a longer period than is reasonably necessary…. (?It streams the content of the copy to the same subscriber and to no one else.?); … (?If the user does not press ?Record? before the program ends, the copy of the program created for and used to transmit the program to the user is automatically deleted when it has finished playing.?);… (?The file saved to the hard disk using the ?Watch [Now]? function is not automatically retained unless the user clicks ?Record? while the show is still open on the user?s web browser.?). Fifth, the material is transmitted without modification of its content….

As a result of satisfying this safe harbor provision, Aereo cannot be liable for the claimed ?public performance? of Plaintiffs? claimed copyrighted works. And, Plaintiffs? requested preliminary injunction cannot be entered because it is outside the scope of a permitted injunction under the DMCA.

That could lead to some interesting legal questions going forward.

Finally, Aereo argues that no injunction is necessary, because there’s no evidence of “irreparable harm.” Here it probably hurts that CBS and other networks more or less admitted that even if Aereo had won the “harm” would be minimal.

The Section 111 arguments about whether or not it’s a cable company will continue to make the headlines, but the DMCA argument here may be the most interesting one of all (and one that the broadcasters will most freak out about).

Filed Under: broadcast tv, cable company, copyright, dmca, dvr, networks, section 111, streaming
Companies: abc, aereo, cbs

Fox Loses Yet Again Against Dish Autohopper; Appeals Court Ignores Silly Aereo Argument

Copyright

from the innovation-allowed dept

Some good news on the innovation front. Following on Fox’s big initial loss in trying to stop Dish’s Autohopper DVR feature, an appeals court has upheld the ruling. The main issue? Fox completely failed to show how an injunction is necessary to stop “irreparable harm.” The court is pretty sure that any “harm” would be quite “reparable.” There isn’t much analysis — the court just clearly is not convinced. Beyond saying that the district court didn’t make any legal errors in issuing the original ruling, the appeals court notes that the service has been available for a while already, kinda disproving the whole “irreparable harm” argument.

Here, the district court found that Fox?s lack of evidence that the complained-of technology, available for several years, had yet caused Fox?s business any harm weighed against Fox?s argument that it would be irreparably harmed absent a preliminary injunction. In so finding, the district court did not hold Fox?s evidence to a more rigorous standard than our law requires and so did not abuse its discretion.

Perhaps more importantly, the court totally and completely ignored Fox’s ridiculous attempt to argue that the Aereo ruling supports its position. That was a crazy argument from the very beginning, and clearly attempted to stretch the whole “looks like a duck” test beyond the breaking point. As Dish had pointed out in its response, Aereo lost because it didn’t have licenses. Dish has licenses, so it’s not even close to being relevant. The court appears to have treated it with the amount of respect Fox’s argument deserved: none.

Filed Under: autohopper, dvr, networks, place shifting, primetime any time
Companies: aereo, dish, fox

Was Level 3 The Weak Link That Gave The Feds A Way To Hack Into Google's Network?

(Mis)Uses of Technology

from the no-comment dept

The NY Times has an interesting and informative story building on yesterday’s bombshell about the NSA and GCHQ infiltrating Google and Yahoo’s network links between datacenters. Much of the NYT report covers the same ground as the original Washington Post article, but adds a few key details. The key part? That the network cables that connect the various Google datacenters are apparently provided by telco infrastructure giant Level 3 — and when asked about it, Level 3 seemed to hint strongly that the government may have gotten access via it, but that it was legally gagged from talking about it:

In a statement, Level 3 said: “We comply with the laws in each country where we operate. In general, governments that seek assistance in law enforcement or security investigations prohibit disclosure of the assistance provided.”

That’s not a definite confirmation, but you can see how it would raise eyebrows. As the NYT report notes, in an earlier story, concerning claims that Level 3 had helped the intelligence community spy on Germans, the company had denied the report. The fact that it’s not denying it here, but rather pointing out that if it had helped there would be a gag order, certainly suggests the potential way in for the NSA. If so, Google might want to look rather closely at its agreement with Level 3.

Filed Under: datacenters, infiltration, networks, nsa, nsa surveillance
Companies: google, level 3, yahoo

NSA Issues Non-Denial Denial Of Infiltrating Google & Yahoo's Networks

Say That Again

from the here-we-go dept

While NSA boss Keith Alexander issued a misleading denial of this morning’s report of how the NSA has infiltrated Yahoo and Google’s networks by hacking into their private network connections between datacenters, the NSA has now come out with its official statement which is yet another typical non-denial denial. They deny things that weren’t quite said while refusing to address the actual point:

NSA has multiple authorities that it uses to accomplish its mission, which is centered on defending the nation. The Washington Post’s assertion that we use Executive Order 12333 collection to get around the limitations imposed by the Foreign Intelligence Surveillance Act and FAA 702 is not true.

The assertion that we collect vast quantities of US persons’ data from this type of collection is also not true. NSA applies attorney general-approved processes to protect the privacy of US persons – minimizing the likelihood of their information in our targeting, collection, processing, exploitation, retention, and dissemination.

NSA is a foreign intelligence agency. And we’re focused on discovering and developing intelligence about valid foreign intelligence targets only.

Note what is missing from all of this. They do not deny hacking into the data center connection lines outside of the US. They do not deny getting access to all that data, especially on non-US persons. As for the claim that they’re protecting the privacy of US persons, previous statements from Robert Litt, the general counsel for the Office of the Director of National Intelligence, have already made it clear that if they collect info on Americans, they’re going to use this loophole to search them:

“If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”

So, for all the claims that this kind of information will be “minimized,” it certainly looks like they’ve already admitted they don’t do that.

Meanwhile, that Guardian article that has the NSA’s response also has responses from the 3 other players in this drama. There’s the UK’s GCHQ, who apparently has partnered with the NSA in breaking into Google and Yahoo. It didn’t want to say a damn thing:

“We are aware of the story but we don’t have any comment.”

Google, however, was reasonably furious about this story.

In a statement, Google’s chief legal officer, David Drummond, said the company was “outraged” by the latest revelations.

“We have long been concerned about the possibility of this kind of snooping, which is why we have continued to extend encryption across more and more Google services and links, especially the links in the slide,” he said.

“We do not provide any government, including the US government, with access to our systems. We are outraged at the lengths to which the government seems to have gone to intercept data from our private fiber networks, and it underscores the need for urgent reform.”

Yahoo’s response, unfortunately, was a lot more restrained and not particularly on point.

“We have strict controls in place to protect the security of our data centers, and we have not given access to our data centers to the NSA or to any other government agency.”

Yeah, but the story is how the NSA got around your security. Yahoo should be a lot angrier about this. One hopes that once the technical people talk to management, the company will realize just how bad this situation is.

Hopefully, this means that Google and Yahoo will stop just focusing on getting more “transparency” out of the government concerning NSA surveillance, and will start taking a much more active role. This includes: (1) pushing back hard against government surveillance, including going to court to stop it and (2) building much more secure systems that cannot be easily compromised by the NSA.

Filed Under: executive order 12333, gchq, infiltrate, keith alexander, networks, nsa, nsa surveillance, section 702
Companies: google, yahoo

DailyDirt: Is There A Better Word For Wireless?

Wireless

from the urls-we-dig-up dept

Wired communications are obviously a more reliable connection than any wireless technology (when a wired connection is actually possible or practical), so wirelines aren’t going away any time soon. (Well, unless you live on an island off the coast of New Jersey.) But wireless technologies offer some pretty clear advantages, too. Maybe we’ll discover some way to make wireless connections just as solid as wired ones, but until then, here are just a few advances for transmitting information without a wire or cable.

• If you’re really paranoid about someone intercepting your home WiFi network, maybe someday you can set up a wireless network that transmits via visible wavelengths (so a wall would effectively block out would-be eavesdroppers). It might be annoying to set up a wireless network like this for more than one room, though. [url]
• Cheap, high-bandwidth transmitters for satellite communications in the 42-25 GHz range might be nice to have in a smartphone. A couple DARPA teams have demonstrated the feasibility of millimeter-wave power amplifiers on silicon chips for the first time. [url]
• T-rays (aka terahertz rays) have been shown to break the 3 Gbps barrier — but a T-ray based WiFi network would probably only achieve 100 Gbps and have a range of about 10 meters. FYI: T-rays are part of the unregulated spectrum, and they can penetrate some materials (but not metals or water). [url]

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: bandwidth, communication, networks, satellite, t-ray, technology, unregulated spectrum, wifi, wireless
Companies: darpa