Aereo and the Supreme Court

[imoldernu]

In 1984, the Betamax decision began one of the most revolutionary changes in the history of technology. The coming Supreme Court case involving Aereo may arguably be more important. The implications for both business and the consumer will be considerable.
At issue is Copyright Law, and what we know as "free TV". If the answers were simple, it is unlikely that the issues would have risen to the level of the Supreme Court.
At present, the users of "free TV represent about 15% of those who watch TV, the remainder going to Cable and Satellite or other forms of controlled delivery.

At further issue, but not in hearings is the usage of the "cloud"... which has already put at risk the business of storage drives and other electronic devices.

Just a heads up for those who might be interested in following a momentous legal decision in the making.

In the final analysis, it is unlikely that we will be materially affected in the pocketbook as a result of this, but overall, there is the possibilty that competition in the marketplace, could have new meaning.

[bUU]

That last bit is important: Someone is going to get our money... consumers will pay as much as what they get is worth. This case will simply determine how much of that money can be diverted from those who generate the value to those who successfully exploit legal exploits.

[MichaelB]

Quote:

Originally Posted by imoldernu Just a heads up for those who might be interested in following a momentous legal decision in the making. In the final analysis, it is unlikely that we will be materially affected in the pocketbook as a result of this, but overall, there is the possibilty that competition in the marketplace, could have new meaning.

That's quite a jump from Aereo to cloud computing to competition having new meaning. My bet is the SC isn't going to broadly redefine a marketplace, they'll leave that up to other economic constituents and attempt to keep a narrow legal focus.

[donheff]

Quote:

Originally Posted by MichaelB That's quite a jump from Aereo to cloud computing to competition having new meaning. My bet is the SC isn't going to broadly redefine a marketplace, they'll leave that up to other economic constituents and attempt to keep a narrow legal focus.

I have been following this on SCOTUS Blog and agree. We can always hope for an earth shaking opinion but will probably see a chip shot.

[ziggy29]

The question to me is: When the TV networks use free airwaves that have been granted to them by license from the FCC, can they control what other entities do with those free signals when they pass over the property of others? If I'm not free to use their signals over my property as I see fit -- can't I say said signals are trespassing on my property and my property is being used to allow propagation of their signals for their profit without my consent? I mean, it does go both ways here. I don't expect the Court to side with Aereo if recent history of the Roberts Court is any indication, but there are property rights questions on both sides of the argument.

Not to mention that the networks have said (possibly an idle threat, possibly not) that they will abandon the free airwaves and go to the less regulated cable model if Aereo wins here. Federal regulators (primarily the FCC and Congress) have a lot less authority to regulate cable than they do the free airwaves that are being used by the networks under license from the government.

[kramer]

I would gladly pay to get Aero overseas where I live but they check that you are within 25 miles or so of the metro area for which you signed up, even if you have a credit card address there (like I do).

[ziggy29]

Quote:

Originally Posted by kramer I would gladly pay to get Aero overseas where I live but they check that you are within 25 miles or so of the metro area for which you signed up, even if you have a credit card address there (like I do).

Psssst.... VPN?

[photoguy]

Part of me hopes that Aereo wins and sets a precedent so that Netlix or competitor can do the same thing with physical media.

[kramer]

Quote:

Originally Posted by ziggy29 Psssst.... VPN?

Not so easy when you have to be in a certain *metro* area, as opposed to being in the USA. I already pay a DNS service so that my IP address is in the USA for USA content providers (which is more efficient than using VPN).

[bUU]

Quote:

Originally Posted by ziggy29 The question to me is: When the TV networks use free airwaves that have been granted to them by license from the FCC, can they control what other entities do with those free signals when they pass over the property of others?

What's protected aren't the signals but the content that rides on the signals. If a friend comes over with a CD they like, and you play it on your computer, the fact that you were legally allowed to play that CD and use its data to make music come out of your computer doesn't give you the right to rip the CD and sell access to a service that plays that CD for others on demand. The CD was sold with a specific license implicit - even if you didn't know that that was the case, it is well-established that legally the license conditions still apply. Using the content in a manner inconsistent with how it was licensed to you is generally a violation of the law.

Quote:

Originally Posted by ziggy29 I mean, it does go both ways here.

Well, it actually doesn't, for you ziggy29 service scenario. There's no sound foundation in our law for your selling copies of something someone else provided to you through established means to provide it to you solely for your own personal consumption. Even the First Sale Doctrine only allows you to sell the original, and requires you to ensure you have no copies.

It is important to realize why Aereo even has a case to make: They built infrastructure to receive the signals separately for each subscriber. Essentially, they created a system whereby what they're selling is access to a physical antenna and a virtual wire from there directly into the input jack of a subscriber's television. The weakness of their case is that virtual component. If they really did have a dedicated line from the antenna to the subscriber's home, they'd be safe. The fact that they essentially multiplex the content and transmit it through the public conveyance of the Internet probably means that the First Sale Doctrine cannot be adjusted to its logical digital applicability to protect their business model.

Quote:

Originally Posted by ziggy29 I don't expect the Court to side with Aereo if recent history of the Roberts Court is any indication, but there are property rights questions on both sides of the argument.

Strong property rights on the content generators' side - weak property rights on Aereo's side, because they really don't have any rights to claim ownership over the content. I doubt even an earlier, more balanced court, would side with them.

Quote:

Originally Posted by ziggy29 Not to mention that the networks have said (possibly an idle threat, possibly not) that they will abandon the free airwaves and go to the less regulated cable model if Aereo wins here.

I'm surprised that that hasn't already happened. The reason why cable is not "worth" that yet is because OTA broadcast is still "worth" that.

[ziggy29]

Quote:

Originally Posted by bUU What's protected aren't the signals but the content that rides on the signals. If a friend comes over with a CD they like, and you play it on your computer, the fact that you were legally allowed to play that CD and use its data to make music come out of your computer doesn't give you the right to rip the CD and sell access to a service that plays that CD for others on demand. The CD was sold with a specific license implicit - even if you didn't know that that was the case, it is well-established that legally the license conditions still apply. Using the content in a manner inconsistent with how it was licensed to you is generally a violation of the law.

Except that I never agreed to any license about how to use free airwaves coming onto my property. I never even consented to them coming on my property at all, let alone make some purchase with a "license" that is part of the terms of sale, whether implicit or explicit.

Not to mention that these airwaves are something that the "content owner" or broadcaster are freely giving away to all who can receive them (the record label does not do that with their CDs). Perhaps another example would be someone passing out free goodies to anyone on the street who was near enough to them and wanted them... and then the people turned around and gave out those goodies to others who were also in the area.

[bUU]

Quote:

Originally Posted by ziggy29 Except that I never agreed to any license

Yes you did, even if you choose to disclaim the implicit terms and conditions the legitimacy of the imposition of which, even without your explicit endorsement, is well-established.

Cutting through the BS: If you don't want to abide by the terms and conditions of the license (which I explained above), your only defensible position, under the law, is to refrain from patronizing that offering. You don't get to unilaterally decide that your unjust enrichment is okay.

[ziggy29]

Quote:

Originally Posted by bUU Yes you did, even if you choose to disclaim the implicit terms and conditions the legitimacy of the imposition of which, even without your explicit endorsement, is well-established.

I did not. Again, I never chose to allow those airwaves onto my property. What about postal laws, where if you didn't order something and it arrives, you can keep it (assuming it really was intended to be sent to you and you never requested it)?

Quote:

Originally Posted by bUU Cutting through the BS: If you don't want to abide by the terms and conditions of the license (which I explained above), your only defensible position, under the law, is to refrain from patronizing that offering. You don't get to unilaterally decide that your unjust enrichment is okay.

Harshly opinionated much? Unjust IN YOUR OPINION. Which is no more valuable or sacrosanct than anyone else's.

Do I have the right to tell these broadcasters not to encroach on my property? If not, it is being forced on me whether I want it or not. Look, I'm not saying it's a rock-solid legal argument but it's something the people who are the strongest defenders of "property rights" fail to consider: What about the right of me as a property owner to not have the signals infringe on my private property? Maybe I'm convinced the airwaves cause cancer, and don't want them near me. And maybe then it's unjust to let them pass signals through MY property, without compensation or my consent, through my property? How is it "just" that they can use my property like that for a profit without compensation me as the owner of that property? In that sense, it's a mirror image of the case before the Court: Do they have a right to use my property in a way I don't consent to which allows them to profit without any considerations for the usage of my property?

Read my first post in this thread again. You'll find this:

Quote:

Originally Posted by ziggy29 ...can't I say said signals are trespassing on my property and my property is being used to allow propagation of their signals for their profit without my consent?

THAT was part of my original point, one you mostly side-stepped. What I quoted here is what the broadcasters ARE doing with other people's property, and it's not much different than what the broadcasters are accusing Aereo of doing. So why can't we sue the broadcasters for using our property to further their signals to make a profit without giving us fair consideration for the use of our property? Why isn't that "unjustly enriching" themselves by using our property in a way we didn't consent to? Or do property rights only exist for big corporations with powerful lobbies and lawyers?

[bUU]

Quote:

Originally Posted by ziggy29 I did not.

Using the service ratifies the license conditions. Even if you don't agree.

Quote:

Originally Posted by ziggy29 Again, I never chose to allow those airwaves onto my property.

The government's perspective on this trumps yours.

Quote:

Originally Posted by ziggy29 What about postal laws, where if you didn't order something and it arrives, you can keep it (assuming it really was intended to be sent to you and you never requested it)?

You cannot make copies of it and sell the copies.

Quote:

Originally Posted by ziggy29 Harshly opinionated much?

The corrupted perspective that you're expressing is often used in an attempt to excuse self-serving transgression of the tenets of the law and of fairness in general. It's not harshness - it is reality.

Quote:

Originally Posted by ziggy29 Do I have the right to tell these broadcasters not to encroach on my property?

No. Nor do you have the right to unilaterally impose your own terms and conditions on the arrangement. You accept theirs or ignore the signals.

Quote:

Originally Posted by ziggy29 If not, it is being forced on me whether I want it or not.

That's the law.

Quote:

Originally Posted by ziggy29 Look, I'm not saying it's a rock-solid legal argument but it's something the people who are the strongest defenders of "property rights" fail to consider: What about the right of me as a property owner to not have the signals infringe on my private property?

There is no such right, nor is there an overriding public interest in adding such a right that would trump the existing rights that this new right you personally want would trounce.

Quote:

Originally Posted by ziggy29 Maybe I'm convinced the airwaves cause cancer, and don't want them near me.

Then get the laws changed. After that, and only after that, would such rights as what you assert come into existence.

[ziggy29]

Quote:

Originally Posted by bUU The corrupted perspective that you're expressing is often used in an attempt to excuse self-serving transgression...

"Corrupted"....

"Self-serving transgression"....

I'm done with you before I say something I will regret. You sure use a lot of loaded words that impute sinister motive on your rhetorical opponents. I'm not playing any more.

[Chuckanut]

Quote:

Originally Posted by ziggy29 I did not. Again, I never chose to allow those airwaves onto my property.

Your elected representatives did it for you. Just as they decided that we all agree to stop at STOP signs and not sell vodka to 12 year olds. They also agreed that if somebody sends you something through the mail that you did not order, you can keep it and don't have to pay for it.

That aside, they are public airwaves and the broadcasters are getting paid (via commercial fees) to send them out to anybody in the area that has an antenna that receives them. The Aereo service, unless I am wrong, also receives the commercials and other promotional stuff that the broadcasters use to earn a profit, and sends them along to the subscriber.

[ziggy29]

Quote:

Originally Posted by Chuckanut Your elected representatives did it for you. Just as they decided that we all agree to stop at STOP signs and not sell vodka to 12 year olds. They also agreed that if somebody sends you something through the mail that you did not order, you can keep it and don't have to pay for it. That aside, they are public airwaves and the broadcasters are getting paid (via commercial fees) to send them out to anybody in the area that has an antenna that receives them. The Aereo service, unless I am wrong, also receives the commercials and other promotional stuff that the broadcasters use to earn a profit, and sends them along to the subscriber.

Once upon a time the broadcasters would be thrilled to have another service offer to send their signal and their advertising to many more people. But I guess they discovered the joys of reselling signals to cable and satellite, and that's what they want people to do.

Look, I don't side with Aereo here -- my main point was that many of the same arguments the broadcasters are making can be used *against* them as well. And I understand the law makes a difference, but we all know the law is sometimes unjust, inequitable, unevenly applied, and sometimes not even moral. So from the standpoint of *principle* -- the broadcasters are doing the same thing they are accusing Aereo of doing in some ways -- using the property of others to profit without their consent and without compensating them.

[bUU]

Quote:

Originally Posted by Chuckanut Your elected representatives did it for you. Just as they decided that we all agree to stop at STOP signs and not sell vodka to 12 year olds.

Precisely. We take the good (law and order, a reliable currency, etc.) with the bad.

Quote:

Originally Posted by Chuckanut That aside, they are public airwaves

Used under federally-granted license.

Quote:

Originally Posted by Chuckanut and the broadcasters are getting paid (via commercial fees) to send them out to anybody in the area that has an antenna that receives them.

And part of what broadcasters agree to when they secure the rights to content, is that the content will be broadcast only within the broadcaster's service area.

Quote:

Originally Posted by Chuckanut The Aereo service, unless I am wrong, also receives the commercials and other promotional stuff that the broadcasters use to earn a profit, and sends them along to the subscriber.

True, but remember that the activities Aereo engages in profits them, i.e., it is value that they are deriving. A fundamental principle of the capitalist side of our hybrid economy is the right of a company to profit on value they provide.

[Chuckanut]

Quote:

Originally Posted by bUU True, but remember that the activities Aereo engages in profits them, i.e., it is value that they are deriving. A fundamental principle of the capitalist side of our hybrid economy is the right of a company to profit on value they provide.

The companies that make the TVs we use to watch over the air TV also profit from the broadcaster's product, but they don't have to pay a cent to the broadcasters.

The reality is that if Aereo was in my area, I would probably watch more content broadcast by my local stations. And that would include commercials.

[Chuckanut]

Quote:

And part of what broadcasters agree to when they secure the rights to content, is that the content will be broadcast only within the broadcaster's service area.

Doesn't Aereo limit each customer to those stations within his/her local broadcast area?