FOX Thinks Aereo = DISH Anywhere

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I haven't read the SC ruling, but it has been reported that the court, in its ruling, tried to make clear that this ruling should not necessarily apply to other similar types of services or "cloud based" services. The ruling just means that the SC could not see a difference between cable and sat delivering locals and having to pay and Aereo (despite differences in technology) delivering locals to subscribers, but no paying the nets for the right to do so. If I understand correctly, all Aereo has to do is pay the big nets and locals the right to retransmit, and Aereo would then be free offer its cloud based personal DVR service without violating copyright law because the DVR itself is legal and cloud based cable co service that stores recordings "in the cloud" of the MSO has been ruled legal by lower courts. The Supreme Court's attempt at a narrow ruling is intended to not imperil the emergence of remote streaming and remote viewing by way of transfers now used by other services. So, in other words, Fox really doesn't have any more leverage than day one.

What is different for Dish is that it is already paying for the right to retransmit the locals, and further, it streaming using the Sling technology has already withstood legal challenges and that the "sideloading" still meets the notion of "personal and private." I would not be surprised that if Fox tried to take its case to the Supreme Court, that the Court would refuse to hear the case and let stand lower court rulings. I don't think the Court cared to wade into those waters. The Aereo case was of unique interest to the High Court because it was retransmitting locals without paying for the right to do so, something that was truly unique. Such circumstances do not exist for the MSO's nor the Sat companies. I would presume the 3 dissenting judges agreed with all the lower court's legal logic that Aereo was not violating copyright law due to its unique method of accessing that content and sending that content to the subscriber. Both sides make sound arguments, but I have to find the logic of the lower courts (plural) to be the "inconvenient truth," if you will, meaning it meets the requirements of "Personal and Private" and the legal precedent that the private individual initiate such transmissions or recordings, as the Aereo technology is designe, and while not viewing these locals, the antenna is NOT tuned to receive anything. The Areo service does not work unless commanded to do so by the subscriber at a remote location. IMHO, the 3 dissenting judges are correct and the 6 majority judges ignored the law.

The ONLY issue the Supreme Court ruled upon was if it believed that Aereo was, in fact, retransmitting the locals without paying for the rights to do so as per copyright law. That ruling truly has NOTHING to do with Fox challenging Dish regarding Dish Everywhere, Sling, nor moving content to a subscribers PERSONAL mobile device. In other words, the MVPD is paying for the rights to retransmit; the subscriber is paying for the right to access that programing, and further, may send that programming to itself (the subscriber) to any remote location using just about any means of legal transmission such as internet and wireless telco spectrum as on example or transfer that content to the subscribers' mobile device so long as it is "personal and private." The only thing this ruling seems to be saying is "if you want to retransmit or be a be a CONDUIT selling a service that sets up an antenna, but only the subscriber actually tunes the antenna and initiates the stream for reception of local stations, you have to pay for the right to do so as per copyright law." There really is nothing else more to read in this.
 
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Short version: Fox is still mentally defective if they think they have a case. I honestly don't know why something can't be done about that.
 
I do not think Fox will make much headway with the Sling = Aereo argument. The SC was pretty clear that Aereo's problem was that they were trying to be a cable company without paying for content rights, Dish is paying.
 
Fox needs to be offered la carte. Lets see how many sticks with them. Instead of easing the way a paying subs can watch their content they are going in opposite direction.

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Slamminc11 said:
FOX = completely and utterly clueless!
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Naw, just overly optimistic. The main difference is that Dish is already paying Fox for the content and DVRs have been deemed legal. Aereo is about as equivalent to Dish Anywhere as Spam is to Filet Mignon. Sure, they are both foods, but umm... you get the point.
 
http://www.businessweek.com/articles/2014-06-27/will-the-aereo-ruling-help-fox-ban-dishs-dvr?

Looks like July 7th there will be a courtroom battle.

Business Weeks take on it:

Dish has already won a round in this particular court dispute, but Fox thinks that the Aereo decision has changed the equation. The companies will argue their cases on July 7. Should the court will find Fox's new argument compelling, it would prove that the Aereo case will serve as a precedent for the television industry to cut down novel technologies. For now, Fox thinks it has a new tool to wield against those who threaten its current business model.
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Disney has shown what's going to happen. Fox just wants a little more out of their negotiations and is using the court system to push Dish a little more. IMO, this can just be ignored entirely.
 
DishSubLA said:
"I haven't read the SC ruling, but it has been reported that the court, in its ruling, tried to make clear that this ruling should not necessarily apply to other similar types of services or "cloud based" services."
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The big problem with the majority decision is that it was cobbled together from disparate ideas. Justice Breyer quoted small statements made from two congressmen from one party that were on a subcommittee in one of the two houses of the legislature as proof of the intent of the whole body when they drafted the copyright act. They; took a piece from one section of law, combined it with other pieces of other sections, stated that the Supreme Court never looks at particulars of technology, and then stated that they didn't believe that anything of what they said would end up being used against anything other than Aereo or someone who copied what Aereo was doing. The reasoning was very convoluted. I listened to a couple of podcasts in which none of the lawyers could actually make real sense of the decision. With all of the disparate items used in the decision, despite the majority's desire to limit the decision to Aereo, I believe that many lawsuits will be filed based on those disparate convoluted statements.

The dissent was pretty reasoned and concise. Scalia stated that what Aereo was doing should not be legal. However, he said that technically they were following the law. He stated that it is the job of congress to plug any loopholes in the law that congress sees fit to plug, and it is only the job of the courts to interpret whatever congress is able to pass.

There was some wording in the majority decision that roughly said that even though the consumer was directing the equipment as to what to tune into and what to record, that Aereo was in fact transmitting the programming. Fox's complaint uses that language and states that Dish, not the consumer, is transmitting the signal from the Hopper to the consumer. Dish does have a license to transmit to the consumer, but Fox is claiming that there is no license to transmit from the consumer's device to another location. I would think that Dish would win easily, but the majority decision in the Aereo case makes me believe that the actual wording of the law matters less than whatever the courts think the law should have been.
 
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ronjohn said:
The big problem with the majority decision is that it was cobbled together from disparate ideas. Justice Breyer quoted small statements made from two congressmen from one party that were on a subcommittee in one of the two houses of the legislature as proof of the intent of the whole body when they drafted the copyright act. They; took a piece from one section of law, combined it with other pieces of other sections, stated that the Supreme Court never looks at particulars of technology, and then stated that they didn't believe that anything of what they said would end up being used against anything other than Aereo or someone who copied what Aereo was doing. The reasoning was very convoluted. I listened to a couple of podcasts in which none of the lawyers could actually make real sense of the decision. With all of the disparate items used in the decision, despite the majority's desire to limit the decision to Aereo, I believe that many lawsuits will be filed based on those disparate convoluted statements.

The dissent was pretty reasoned and concise. Scalia stated that what Aereo was doing should not be legal. However, he said that technically they were following the law. He stated that it is the job of congress to plug any loopholes in the law that congress sees fit to plug, and it is only the job of the courts to interpret whatever congress is able to pass.

There was some wording in the majority decision that roughly said that even though the consumer was directing the equipment as to what to tune into and what to record, that Aereo was in fact transmitting the programming. Fox's complaint uses that language and states that Dish, not the consumer, is transmitting the signal from the Hopper to the consumer. Dish does have a license to transmit to the consumer, but Fox is claiming that there is no license to transmit from the consumer's device to another location. I would think that Dish would win easily, but the majority decision in the Aereo case makes me believe that the actual wording of the law matters less than whatever the courts think the law should have been.
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Well, what is troubling about the decision is that it seems a piece of so called "judicial activism" that both the left and right of the Court seem to engage while one side accuses the other of exclusively doing so. In the decision, the majority went to the point of supposing the intent of Congress, and this is not necessary in a case that involves copyright law, not a matter regarding a Constitutional question involving, say, the Bill of Rights, where one would no choice but to take the presumptuous position of considering the "Founding Father's" intentions to some degree in ruling in the context of the modern world.

Instead, this was simply a matter of Copyright law, a matter left to Congress, especially since this case involved technology and processes that, while technically legal, was something Congress could not have anticipated when the law was passed, but can easily amend the law to directly or even more broadly address Aereo's unique process, hardly the notion of interpreting the Constitution that can not be so easily changed to address changed in technology.

The minority, all conservative judges, ruled on the facts and the law even if Aereo's technological process seemed something of a contrivance to "get around the law", (something Scalia believed, as you put in your post and I subsequently learned myself) but the result was nonetheless meeting every attribute necessary to meet the notion of "private performance, "personal and private," and such service being initiated by the user (I suppose in the law, they refer to this as "tests"). DONE, one would think. If the media companies or Congress don't like it, they can change the copyright law as Congress sees fit. The mostly liberal majority affirmed the sad notion that the left leaning judges do, in fact, practice "judicial activism" (and when they see fit, the right leaning Judges do so, as well) by trying to be Congress in attempting to know what Congress's intent was when passing the Copyright law. This was recently passed legislation and Congress is still alive and well to change any bit of it, not requiring the Supreme Court to get in "Congress's head," a completely unnecessary (but often practiced) exercise because copyright law is not a 200+ year old document that truly requires interpretation of such words and even intent if one is to rule on a matter in the modern era, nor does changing copyright law require the long and difficult process to change that the Constitution does.

And this is why the lower courts ruled in favor of Aereo, or rather the Areo's attributes meet what is necessary to NOT be violating the copyright law passed by congress. The lower courts, correctly, did not wade into the notion of trying to figure out the intent of Congress, but simply ruled on the facts knowing that Congress can change Copyright law anytime time it wants to forbid or allow anything it wants whenever Congress feels like it. The Supreme Court went that often slippery step further rather then allowing Congress to make clear what its intentions were, as Congress only know what that is, NOT the Supreme Court.

Now, the Court has just added confusion with its Judaical Activism rather than clarity or certainty, one of the key roles of the Supreme Court. Despite the claims of the Court that this ruling should not be taken to address several other similar services nor those involving the emerging "cloud," their ruling now does bring legitimate questioning of matters thought resolved such as MSO's offering DVR Cloud storage services, and a lot of other cloud services for that matter. If the Court were going to presume Congress's intent, they should have gone all the way in Judicial Activism and just LAID IT ALL OUT for us. Now, we have to endure the Supreme Court having to reject quite a number of new challenges, with no one but Congress knowing Congress's intent.

Finally, even if the majority just couldn't help themselves but rule as they did, they should have been more mindful of the confusion to follow and the reanimated (thought to be dead) issues and previous lower court cases and rulings, and just, properly, left it up to Congress to fix, while still making it clear they (the Court) don't think Areo "should" be legal, as per Scalia. Instead the Court adds something of a feeble footnote about not reading more into their decision than some would like, but that is pretty much what plaintiffs and their attorneys always do.

Even if the Court had ruled on favor of Areo, I think the NAB would have been successful in getting legislation passed to kill Areo simply because NAB has deeper pockets and always (but once) gets its way and hardly enough of the public use Aereo to create public outrage, but at least it would have proceeded as it should have, for Congress to decide, for better or worse. Now, Congress is off the hook and just let the whole thing die. A lot of lawyers are gonna make a lot of money with renewed court cases challenging lower court rulings that were thought matters settled.
 
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The problem is that if all you had to do to be legal was not do something exactly as the law stated, people would find ways around most laws. They ruled that it was the intention of congress to cover any company that retransmitted the OTA signals to consumers, using the internet and dime sized antennas might not have been mentioned in the law but the overall process is the same result.
 
I think that Dish will have some serious problems with Fox's new claims. Summarized in my own words, in the Aereo case:

  • Even though the equipment was leased and controlled by the consumer, Aereo's equipment was performing the copyrighted works.
  • For the live broadcasts, multiple people were viewing at "approximately" the same time making it a public performance.

For Dish,

  • Even though the Hoppers with Sling are leased and controlled by the consumer, Dish's equipment is performing the copyrighted works.
  • For the live broadcasts, multiple people were viewing at "approximately" the same time making it a public performance.
Fox claims that their contracts with Dish only provide a license to transmit the programming to the consumer. If that is the case, then a secondary transmission of the programming would have to be private. Since multiple people stream programming from live tv with Dish Anywhere, I predict that the courts, based on this ruling will force Dish to turn off the live streaming.

I don't know that Fox will argue this point, but if more than one person starts a DVR recording of the same content at "approximately" the same time, then even the DVR recordings could be public performances based on this ruling. I listened to one lawyer who conjectured that technology companies will have to develop technology to ensure that no two consumers are able to stream the same programming at "approximately" the same time.
 
mike123abc said:
The problem is that if all you had to do to be legal was not do something exactly as the law stated, people would find ways around most laws. They ruled that it was the intention of congress to cover any company that retransmitted the OTA signals to consumers, using the internet and dime sized antennas might not have been mentioned in the law but the overall process is the same result.
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Which according to Scalia is the correct process. He said that it is the job of good lawyers to find loopholes in the law and exploit them for their clients. He said it is then the job of the legislature to plug those loopholes if and when the see fit. He specifically said that it is not the job of the court to plug loopholes. Scalia actually said that what Aereo was doing should not be legal. Had the court decided based on the actual wording of the law, the NAB would have had the law modified pretty quickly. Instead, we are now going to be subjected to years of additional legal haggling and lawsuits based upon a convoluted and disjointed court opinion.
 
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