"The problem is that Aereo was charging for something — over-the-air TV broadcasts — that by law is provided free to the public. It's like renting out a patch of public park to picnickers, or selling public parking spots . . ."
Not precisely accurate. Aereo was providing convenience, the ability of it's subscribers to access broadcast television in some other place than their living room sofa--allow them to access them with something other than their 54" big screen, like their phone or their pad.
Your analogy falls short, as well. The public broadcasts are not a limited quantity item. Nobody choosing to watch them with their antennas or their cable is prevented from doing so by Aereo's actions. Park space and parking spots are limited availability items and usurping them for private commercial use directly damages those who would have access to them as public areas.
"But Aereo vs. pay TV providers was not a David vs. Goliath battle — more like Goliath vs. Goliath. While folksy CEO Chet Kanojia is the public face of Aereo, the company is bankrolled by media and business titans such billionaire Barry Diller of IAC, media investor Gordon Crawford, and Himalaya Capital Management."
Again, your argument falls short. Mere financial parity does not necessarily amount to parity in the system. The media industry is a very tight society that is well entrenched within the regulatory system. As can be seen in the tight relationship between the major broadcast news organizations and the government today--individuals moving from newsroom to White House or Governmental agency and back to the newsroom, marital ties between newscasters and high government officials, etc.
To assert parity in this case seems a bit blind and naive, to me. Cable companies have regional monopolies on providing service, granted to them by local governments under the aegis of the FCC. The ties between government and the major content providers is nearly as incestuous as the news industry's are.
So let me get this straight: providing a service that changes the path from a "private" (and physical) antenna to screen from a big thick coax cable to wireless and allowing viewers to place- and time-shift otherwise free-to-view OTA BROADCASTS that the broadcasters already get paid for by their ADVERTISERS, is illegal? I don't know who is to blame (Aereo's lawyers or the Supremes) for not bringing up this fact, but it is clear to me that this should have been the crux of the matter. I hope that the broadcasters enjoy their Pyrrhic victory, because I, for one, don't plan on letting them live this one down anytime soon. As for SCOTUS, well, we all know that the court is big business-friendly (unless the issue is truly beyond the pale). Let's hope that the Congress might (not holding my breath) have some gumption to clarify the issue in favor of the consumer.
Aereo wasn't charging for the broadcast, they were charging to rent the equiptment needed to access it and some bandwidth. This is something an individual can easily setup using a computer and TV tuner card, aereo just provided convenience of not having to maintain your own setup.
Glad to see you are owned by the media corps though, Captain, will keep that in mind when I read any of your other articles.
According to the SCOTUS, Aereo's use of an individual antenna for each subscriber "does not make a critical difference." As they are considered to be retransmitting, just as cable companies do, they are subject to the same retransmitting licensing as cable companies are.
If Aereo was not trying to game the system, and was willing to negotiate and pay for retransmission licensing up front, they would never have gone with the headache of individually allocating thousands of tiny antenna, and would never have wound up in court.
It's pretty clear from their inefficient use of thousands of tiny antenna that they were trying to circumnavigate the law. This company is backed by very rich people. They weren't doing this to be a benevolent help to their subscribers in making their TV viewing more convenient, they were trying to cash in on the retransmission of content which they had no hand in creating, while paying no licensing fees.
It was the right decision. I do not support the current state of cable/telecom/content delivery in the US, but people arguing that Aereo should have been safe because it was merely providing a convenience are only arguing semantics. Just because you say you're selling access to a PVR service doesn't change what you're actually doing from end-to-end, which is rebroadcasting the content. Sure, it doesn't make one lick of difference from an electronics/signal perspective if someone tunes in a station in their home, or via an antenna farm somewhere else. But Aereo was still assuming the ownership of the antennas, and allowing for the content collected to be rebroadcasted. At that point, they're functioning no different than a cable company. Do I think broadcasters deserve even more money when there's no perceivable impact to them? Not really. But all the players need to be on the same playing field.
I can scan a book, put the digital pages on my domain and sell monthly access to my for people to view my webpage so they can access the content, and say that I'm just charging for people to access my webpage. It doesn't change the fact that I'm violating copyright law and improperly re-distributing content I'm not permitted to.
Regardless, Aereo was making a profit off broadcasts that are provided for free.
This is where the controversy lies. Aereo could argue they were profiting by providing the DVR service, solid antenna reception and the guide that's included with all paying memberships.
Anyone can purchase a $15 HD antenna, but that might not get you every local channel available depending on your location. To get a decent DVR to hook the antenna to with a decent guide (I know you can get cheaper units), the buy-in price is a little higher. The cost is around $200. Aereo takes this and bundles it for $8/month.
There's a bigger picture here though.
Aereo, and that way of receiving content in general, is a a major threat to traditional cable programming as if you bundle Hulu+, Aereo, Netfllx and Amazon Prime plus the cost of a decent internet connection to use the services, you pay around $70-80/month, whereas most of that programming offered by traditional cable is close to double+.
No one took action regarding the elimination of Net Neutrality in the U.S. until Wheeler (former cable/wireless lobbyist and other pro big business titles) was appointed by Obama and confirmed by the Senate. And now prices are raised for services like Netflix. This is just the beginning.
The big cable providers want to control every form of media that reaches our homes. This makes sense from a business standpoint.
Now they have people in the right positions of government to dictate legal policy affecting citizens of the nation. This seems very wrong.
They are renting you and antenna and a dvr which has already been made clear but I understand the confusion. What if I rented an antenna and DVR from rent-a-center for a monthly fee. Should they be subject to broadcast fees since their service is making a profit from broadcasts in the same manor?
As an IT guy, I can connect a HD antenna to my computer and have it record shows broadcast OTA for later viewing. I can then stream those shows I've recorded to my iphone, and that's legal. My cost is a few $ in equipment.
Then there's the commercial off the shelf version: If you buy a HD Antenna ($50), Tivo Roamio ($200), Tivo Stream ($100), Tivo Subscription ($15/mo or $500), guess what, you can do the same thing that Aereo offered you for $8 a month.
It is not retransmission because it doesn't meet the criteria. The shows are not leaving the market in which they are broadcast (Cable TV) nor is it a public performance (private use of me).
The SCOTUS was very clear that they did not intend their decision to limit cloud DVR services, which is all this was. They got hung up on the idea of retransmission, which this wasn't according to the FCC definition.
So let's take my legal activity above a step further. My neighbor, who I have no personal relationship finds out what I've got setup and likes it . I agree to install a second antenna, allow him to use my already configured server and software, and he can now record his shows (separate copies) and stream them like I do. Due to the miracle of file permissions, I can't access what he recorded, and he can't access what I've recorded . I choose to charge him monthly for storage space. If that's legal, so is Aereo.
Does this now mean that parabolic reflectors that reflect radio waves are also illegal? How about water towers. I remember getting ghosts when we had an antenna TV as a kid. Are water towers now illegal because they rebroadcast electromagnetic waves?
Hey folks, I love that the conversation is continuing (though I would prefer that people not attack me personally). One important thing I should have mentioned - according to the law (Copyright Act amendments of of 1976) any kind of retransmission for a fee is illegal. Before that, SCOTUS had actually ruled in favor of cable companies doing exactly what Aereo is doing - not paying a licensing fee. (Cable cos were startups back then.) Congress specifically changed the law to prevent that from happening. So SCOTUS has no choice but to uphold a law (even one they don't like) that says you have to pay a licensing fee if you transmit TV to customers for a fee. If you are interested, take a peek at the actual ruling. It's long, but they essentially make the basic case in the first few paragraphs. See PDF here http/www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf
"In terms of the Act’s purposes, these differences do not distinguish Aereo’s system from cable systems, which do perform “publicly.” Viewed in terms of Congress’ regulatory objectives, why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. They do not render Aereo’s commercial objective any different from that of cable companies. Nor do they significantly alter the viewing experience of Aereo’s subscribers. Why would a subscriber who wishes to watch a television show care much whether images and sounds are delivered to his screen via a large multisubscriber antenna or one small dedicated antenna, whether they arrive instantaneously or after a few seconds’ delay, or whether they are transmitted directly or after a personal copy is made? And why, if Aereo is right, could not modern CATV systems simply continue the same commercial and consumer-oriented activities, free of copyright restrictions, provided they substitute such new technologies for old? Congress would as much have intended to protect a copyright holder from the unlicensed activities of Aereo as from those of cable companies."
"In sum, having considered the details of Aereo’s practices, we find them highly similar to those of the CATV systems in Fortnightly and Teleprompter. And those are activities that the 1976 amendments sought to bring within the scope of the Copyright Act. Insofar as there are differences, those differences concern not the nature of the service that Aereo provides somuch as the technological manner in which it provides the service. We conclude that those differences are not adequate to place Aereo’s activities outside the scope of the Act. For these reasons, we conclude that Aereo “perform” petitioners’ copyrighted works “publicly,” as those terms are defined by the Transmit Clause. We therefore reverse the contrary judgment of the Court of Appeals, and we remand the case for further proceedings consistent with this opinion."