The Supreme Court is wrong- the reason cable companies are treated as a 'public' performance of a work is that their distribution medium is shared- any subscriber can tune into that broadcasting of that work over a shared common carrier where one copy of the work is transmitted and many subscribers can view it. Aereo is different in that it only transmits the signal captured to a single subscriber at a time, removing the 'public' nature of the performance and hence invalidating their argument. How absurd.
Aereo's setup is absurd. Placing hundreds if not thousands of identical antennas on a rooftop, capturing identical signals and sending them, individually, to users.
That's expensive and inefficient. The only reason they did it was to exploit a potential loophole in the current law - and now the Supreme Court has effectively closed that loophole.
Yes- they are renting me an antenna in the locale the performance is being broadcast, and providing connectivity to that antenna. That is not a loophole- that is the letter of the law- that an individual can receive a broadcast performance of a work, but that it cannot be duplicated. It meets the letter of the law- unlike a system that received the broadcast signal, captured it, and provided the same copy to many users, which would violate the 'public performance' section of the law. Renting me an antenna makes it my individual private antenna, removing the public aspect of the performance, and making it perfectly legal.
It's the letter of a law written in the 1970s, when streaming technology like this didn't exist. No-one had even conceived of the idea that you would group hundreds of antennas together and stream them across a wide area network to users.
The spirit of the law as passed was to stop cable companies capturing and rebroadcasting over-the-air TV signals without compensation. So it shouldn't be too surprising that the Supreme Court made the judgement they did.
It's quite simple: when this law was created, was Aereo's use case considered? If the answer is 'no', then you can expect the law to be refined to cover it at a later date. Odd legal loopholes don't get to stand just because they've been around for a while.
To add to this, they didn't see a distinction between transmitting and performance, and felt the law was clear about the distinction between the role of the viewer and the performer. What was made clear was that one person could not hold both roles.
On if such a performance was private or public: the decision said that it was a moot point as the "commercial objective" of Aereo was the same as if it were public. The law as it stands did not intend to separate private and public performances.
"Oh, the law says no cars in the park but I'm driving my pick-up truck through the park! Ha ha, I win, I talked the computer to death like Kirk did on Star Track!1"
Not really. There's such a thing as the "spirit" of a law, and the technical details of a law.
The intention of the changes to the Copyright Act (which Shivetya has detailed better than I can[1]) was to stop basically what Aereo is doing, albeit back in the 1970s with cable companies. The legalese reflected the technology of the time. Aereo found a technical loophole that allowed them to continue to do it, but all the while they were violating the spirit of the law.
I don't think "technical loophole" is the best description. They were trying to make the case that they were providing a long antenna cord which is at least sorta reasonable (and something the cable companies could not claim).
Antennas are legal. Manipulating airwaves to be played on a TV is legal. Long antenna cables are legal. Putting an antenna on my neighbor's roof is legal. Paying my neighbor rent for such a thing is legal. Storing broadcast content is legal. Paying for devices to do such a thing is legal.
And breaking down a cable company in the same way works consistently too. Antennas are legal, long cables are legal, paying your neighbor to set things up is legal, sharing an antenna with your neighbor is not legal.
My vague understanding of the sprit of the law that allowed broadcasters use of the public airwaves was that it required for the individuals to be able to make use of the transmissions.
Aero by many is seen as a tool to make use of those transmission on public air waves therefore in the sprit of the law.
It isn't scaling horizontally at all. You scale horizontally to increase your capacity, installing one antenna for every user has zero to do with capacity and everything to do with legality.
I maintain that having a multiple of identical components in a system that perform the same duty is horizontal scaling. There are many reasons to scale horizontally, and I'd say increasing capacity is exactly what Aero would be interested in, not to mention fault tolerance. My career is based on building distributed fault tolerant systems, which is potentially why I think I understand their approach differently than you do.
But yes, horizontally scaling systems comes at a cost, sometimes they are more inefficient, sometimes they cost more, but in the long run if it helps you meet the goals of the business it shouldn't be illegal.
Their approach was not to create a distributed fault tolerant system (but boy am I glad I'm talking to someone with such expertise with them) - it might have been a neat side effect of what they did, but it wasn't the reason for doing it.
They said themselves that the reason each user has an antenna is because it was what allowed them to legally operate. Their hardware setup was entirely based around a loophole in existing law. Ironically, it's awful horizontal scaling, too - if a single antenna breaks there is no backup, the user assigned to it loses their TV signal.
They give two antennas for each user (one for live stream and one for DVR). And since they were still adding new users, it is reasonable to think that they had, at any given time, more pairs of antennas than current customers. If one antenna failed, I imagine they had a backup one they could switch to.
The antenna is cheap, but that's not the whole cost. You need the 8VSB reception stage, and then a slice of a server to transcode that 8VSB into H.264 or whatever format they chose. Then you also need disk space for the DVR stuff.
It's not the array of antennas that boggled me the most, it was the racks and racks of servers encoding the exact same show hundreds or thousands of times in parallel.
The Supreme Court is not able to be wrong on a matter of U.S. law. It gets to decide what that law means, not you.
It's not the decision I'd hoped for, nor the one I'd make, but it's nonsense to claim that it's "wrong". All we can do about it now is to get the law changed.
> The Supreme Court is not able to be wrong on a matter of U.S. law. It gets to decide what that law means, not you.
The Supreme Court decides interpretations of law, but the law itself (as written or as interpreted) is quite capable of being wrong. Law does not determine morality.
That also does not mean that SCOTUS is "wrong". A law can be "wrong" (subjective), and the SCOTUS will still have to uphold it if it is constitutional.
They certainly can be wrong. They just can't be overruled by anyone except future members of the same court. In this sense, they are not always right, but they are always correct. If they were always right, there would never be dissenting opinions from 8-1, 7-2, 6-3, or 5-4 splits.
We just pretend that they, like the Catholics pretend for their pope, are infallible. At some point, you have to let the matter be settled in a final and lasting way, otherwise nothing can get done. It is sometimes better for a matter to be settled in an unsatisfying way than it is to have any uncertainty remaining.
A ruling from the ultimate arbiter is not an ethical mandate. While one can hope that their decision is compatible with and motivated by moral values and ethical principles, it could also be the result of political expedience or a bit of bad pork in yesterday's supper.
It isn't right or wrong. It is simply what has been decided by our most prestigious professional arbiters.
If you don't like what they decided, you can accept it and move on, or start petitioning a legislator in an effort to make their decision obsolete.
...Or, there is something else you could do. It rhymes with "abhorrent". As long as we're not concerning ourselves with "right" or "wrong" here, we could simply accept the precept that if the courts fail to deliver acceptable results to the litigants, they might seek them out by other means. It really depends on how mad Aereo is about the fact that a private business interest was able to use government power to destroy a potentially disruptive competitor.
I would guess that the vast majority of Aereo's business expenses were a direct result of attempting to comply with the law, and its apparent loopholes. The service could be replicated at lower cost by one antenna per broadcast station, local resources to convert the signal into compressed video files, and redundant servers in multiple safer jurisdictions. The successor could simply take subscriber fees to ensure that a particular station is recorded during a particular interval, and the resulting video is seeded for a minimum period of time. Now that they know that their entire business model is ruled illegal, there is no particular reason to comply with any part of the law... other than their respect for the law.
Aereo may choose not to do this, but they have proven that there is a market for it, and nothing excites the black market more than a proven demand for an illegal good or service. What's more, the black market equipment will be virtually indistinguishable from legal gear, so long as the operators take even the most rudimentary steps to cover their tracks.
The people who used Aereo aren't just going to go back to cable. They are simply going to move from a provider that could be sued out of existence to one that is effectively invisible, or withhold their money and wait for something else worth spending it on. I understand that the cable companies had little choice but to attack Aereo, but they have to understand that they created the market conditions for Aereo to appear. As long as they exist, they will be playing whack-a-mole with every new service that tries to provide television services better than cable.
> The Supreme Court is wrong- the reason cable companies are treated as a 'public' performance of a work is that their distribution medium is shared.
No.
What makes a cable company "public performance" is that the company is selling services to the general public in an arms-length transaction. The shared nature of the transmission medium is irrelevant.
They could send streams directly to individual subscribers using IPTV, as AT&T does with U-verse, and it would still be a public performance.
That is why Aereo needed the individual antennas to try to take advantage of a perceived loophole. Aereo with one big antenna would not have made it to the Supreme Court, because it would have been so obviously in the wrong.
the definition of "public" in public performance is not about who the broadcast goes out to, but about the relationship between the broadcaster and the broadcastee.
If I invite 100 people to my house to see a movie, it's not a public performance (supposedly) because they are coming as members of my social circle. If I instead showed at a movie theatre and charged for it, and the same 100 people showed up, then it would be a public performance because those 100 people came as members of the public.
Here Aereo broadcast to customers as members of the public. Because Aereo owned the equipment, they were the ones doing the broadcasting (in the oral arguments one of the judges commented on how if instead they sold the equipment and just provided hosting, the position would be much more defensible).
But, like what many others have said, the intent of the law is really what matters, and the definitions of public performance are much more about intent than about technical implementations.
Is that really a necessary part of 'public performance' according to law? You can show movies for pay if only one person is in the audience? I'm not sure that argument works.
The Supreme Court is unfortunately trapped. As the opinion notes, the Court once took a position very like Aereo's, way back in 1968, on the subject of shared "community" antennas (Fortnightly v. United Artists).
The Court's position today is that Congress more or less immediately amended the Copyright Act in response to that decision, and now the law as written no longer supports the Court's former position (and thus no longer supports Aereo's position).
