Why Aereo Should Win at the Supreme Court (Guest Column)

[Peter Parker]

Taking that quote just as it is - yes that is what they are doing. That is irrelevant however to deciding if Aereo is doing that legally. The U.S. laws are FILLED with circumventing, it's doing it legally that counts.

Circumvention in terms of copyrights though is seen as bad thing. Depending on what they think Aereo is doing they MIGHT conclude that it is violating any one of various anti circumventions law. But I am NOT going to predict much of anything about this case or where Justice roberts was going with those comments.

 

[Don in CT]

From what I read it sounds like this could go 50/50. While they might not like Aereo they also didn't have much love for the broadcasters.

 

[dfergie]

Supreme Court Watchers Examine Justices’ Comments For Insights Into What They’ll Do With Aereo

This is a risky exercise. Jurists often like to play devil’s advocate when they question lawyers in open court. But the comments that Supreme Court justices made today in the hearing pitting Aereo against broadcasters likely will provide the only clues about what investors and others should expect ahead of a ruling expected in June. Guggenheim analyst Paul Gallant says he senses that “a majority of Justices would shut down Aereo if there were no potential implications on cloud storage.”

deadline.com

 

[Teehar]

From what I read it sounds like this could go 50/50. While they might not like Aereo they also didn't have much love for the broadcasters.

They don't have to love the broadcasters,they just satiate them.Don't wanna make them too angry ya know. With the government speaking out against Aereo,I see no way they can prevail.I see it more like 85% chance they lose.I hope I'm wrong,but I dang sure ain't holding my breath.

 

[dfergie]

Aereo at the Supreme Court: Justices Confused by Technology, Wary of Implications

In a hearing that lasted an hour, the issue of public versus private performance was discussed, but seemingly in the context of the justices' worries about the consequences of their highly anticipated ruling in the Aereo case.

Justice Stephen Breyer was the most vocal on this topic, telling Clement that the existence of cloud computing made him "nervous" about taking the broadcasters' preferred route of reasoning. Later, when attorney David Frederick appeared on behalf of Aereo, Breyer told him that he was disturbed by what Aereo was doing before quickly making an admission that could be on the minds of other justices.
"And then what disturbs me on the other side is I don't understand what the decision for you or against you when I write it is going to do to all kinds of other technologies," said Breyer. "I've read the briefs fairly carefully, and I'm still uncertain that I understand it well enough. That isn't your problem, but it might turn out to be."

hollywoodreporter.com

 

[dfergie]

Arguments ...
http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-461_o7jp.pdf

 

[dfergie]

TV Week synopsis...

http://www.tvweek.com/blogs/tvbizwire/2014/04/the-aereo-case-is-argued-befor.php

 

[Don in CT]

The private use argument is kind of stupid considering that these are public airwaves open to everyone. The whole idea of paying for retransmission on free airwaves needs to be looked at.

 

[mike123abc]

The private use argument is kind of stupid considering that these are public airwaves open to everyone. The whole idea of paying for retransmission on free airwaves needs to be looked at.

Commercial use of the OTA broadcast has always been illegal. You cannot open a sports bar, put in 10 TVs and not pay. I believe the current fair use is only 1 TV under 55" without external speakers per room of an establishment.

 

[jayn_j]

Commercial use of the OTA broadcast has always been illegal. You cannot open a sports bar, put in 10 TVs and not pay. I believe the current fair use is only 1 TV under 55" without external speakers per room of an establishment.

Agree in essence, but it sounds more complex and probably varies by state and even locality. Found this article from Fresno, CA that includes a multi step flowchart.
http://www.magwoodlaw.com/business/?p=8

 

[Scott Greczkowski]

Commercial use of the OTA broadcast has always been illegal. You cannot open a sports bar, put in 10 TVs and not pay.

Correct this is a Public Performance.

What Aereo is doing is not a Public Performance. Like a Slingbox the customer is remotely accessing their own equipment to watch whats available to them. Just like a Slingbox two people can not connect to the same Aereo account / antenna at the same time. Thus is a private viewing not a Public Viewing.

 

[mike123abc]

Correct this is a Public Performance.

What Aereo is doing is not a Public Performance. Like a Slingbox the customer is remotely accessing their own equipment to watch whats available to them. Just like a Slingbox two people can not connect to the same Aereo account / antenna at the same time. Thus is a private viewing not a Public Viewing.

Yes a private performance. But, as the justices pointed out an elaborate work around the copyright law. It is quite possible that the supremes may just toss it back to congress to close that loophole...

 

[dfergie]

There is a diagram in the following article that helps explain what Aereo is for those with questions ...

http://www.bostonglobe.com/news/nat...g-consumers/Kl7yn8bx35O8ju2rNMWZDN/story.html

 

[Scott Greczkowski]

Yes a private performance. But, as the justices pointed out an elaborate work around the copyright law.

Which is not illegal.. just American Ingenuity.

Also nice to see you agree it is a private performance, as this is the only question before the justices.

 

[mike123abc]

Which is not illegal.. just American Ingenuity.

Also nice to see you agree it is a private performance, as this is the only question before the justices.

I always thought that Aereo should win the injunction fight. I still expect there to be a lengthy trial and appeals process, that I am not so sure they will win.

 

[ts7]

I always thought that Aereo should win the injunction fight. I still expect there to be a lengthy trial and appeals process, that I am not so sure they will win.

There is no appealing a SCOTUS decision and technically presenting arguments before them is not a trial. That doesn't mean the loser in this case won't appeal to Congress to pass legislation that addresses the decision but for all practical purposes, a SCOTUS decision is final.

 

[jayn_j]

There is no appealing a SCOTUS decision and technically presenting arguments before them is not a trial. That doesn't mean the loser in this case won't appeal to Congress to pass legislation that addresses the decision but for all practical purposes, a SCOTUS decision is final.

I believe the appeal is over the injunction, and not the facts of the case. Given the court's history, they could rule over the whole case, the injunction, or a small portion while remanding it back to lower court for retrial. No way of knowing how this will play out.

 

[mike123abc]

There is no appealing a SCOTUS decision and technically presenting arguments before them is not a trial. That doesn't mean the loser in this case won't appeal to Congress to pass legislation that addresses the decision but for all practical purposes, a SCOTUS decision is final.

Different appeals courts have given different decisions on an injunction to stop Aereo from operating during a trial. That is what has been appealed. Out West Aereo has been issued an injunction, in the East the broadcasters were unable to get an injunction before trial.

 

[riffjim4069]

Come on guys...let us put on our big boy pants. Any entity that commercially profits from the retransmission of copyrighted works, without permission and/or payment to the copyright holder, is committing a theft of service...plain and simple...black & white...end of discussion...period! The broadcasters, the government, the law, and good ole common sense all agree. So this idiocy about why Aereo should be permitted to steal intellectual property is just as asinine has I started a thread stating why I should be legally be entitled to create a virtual sofa and invite 'paying guests' (wink, wink--nudge, nudge) to watch Cable TV (USA, TNT, ESPN, HBO, etc.) on my virtual sofa across a private virtual network. Hell, it's an encrypted virtual network and these people are basically 'seated in my living room watching television' thanks to technology, right? Wrong! It's thievery! And it's why AEREO is going to be bankrupted soon.

Elsewhere, the FCC is proposing new Internet traffic rules that would permit companies to pay folks like (Comcast, A&T, Verizon, etc.) for faster/preferred delivery. It's about time! I'm tired of freeloaders (yes, freeloaders and bandwidth suckers) like Netflix, Amazon, Hulu, Youtube and others paying a mere pittance while regular customers foot an disproportionate percentage of the network infrastructure bills...especially the regular folks who use the Internet to check email, pay bills and browse a few website while Joe Blow is streaming video 24x7. It's time for Netflix (and Joe Blow too) to pay their fair share.

You're free to disagree, if you wish, but that would not make me wrong nor you right. Anyway, AEREO should not and will not win this case.

 

[jayn_j]

I really don't understand the passion you express for a very extreme position on this subject. I have asked before, and you have not answered.

I believe the situation is much more complicated than you present it. The networks sell content to affiliates. The affiliates broadcast this material over public airwaves for free. Viewers are able to receive these signals without charge if they live close to the station. The affiliates make money by selling commercials as part of the programming.

This simple system worked well for decades until several factors went and muddied the waters.

1. The satellite companies started carrying network stations and sold them to Out of Market folks who could not receive their local stations
2. The broadcasters retaliated by defining every square inch of the US into DMAs, regardless of whether the signal could actually be received.
3. The Feds cooperated through legislation such as SHVSA that forbids folks from receiving signals outside of their DMA.
4. The local stations, realizing that they were leaving money on the table, used provisions of the SHVSA to charge cable and satellite providers for the privilege of carrying those free signals on their product.
5. Aero comes along and attempts to build something that is effectively a better antenna. It provides access to the 'free' OTA signal to people within that DMA that could not otherwise receive the signal.
6. The networks sue because someone is trying to 'steal' the signal they put out for 'free'

Now, I do think Aero has made a couple of mistakes that might cost them a decision. I think adding the DVR clouds the issue and should not be a feature, at least at this time. I also think that Aero should have provided that the signal only be decoded by their own set top box that converted the signal back to ATSC. That would have made it a true extended antenna.

I also think that Aero should have initiated its own class action suit against the stations in one or more market (perhaps Denver DMA) for discriminatory practices in allowing some of their customers to receive the signals for free while charging others.