# Aereo loses in 10th Circuit court



## dpeters11

This currently affects Salt Lake City and Denver.

http://arstechnica.com/tech-policy/2014/02/aereo-loses-copyright-fight-to-tv-networks-in-utah/


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## inkahauts

Well that sounds like someone who is trying to protect stations from chargeing for something they agree to give to people for free when they got all the bandwidth for free.


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## lparsons21

The title of the news on the home page is incorrect. They haven't lost at all since it hasn't been tried.


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## nmetro

The Salt Lake City CBS affiliate is owned by Sinclair; and the FOX affiliate is owned by Tribune. The CBS affiliate was once owned by CBS proper.

OK, Aereo's model, when you read their web site, can be interpreted that they are taking over the air signals, and passing them along. One's "antenna" is dedicated IP address fro their stream over IP service. The "DVR" is stored at their data center. This is not the same as taking an antenna, putting it on one's roof and capturing signals. In a way, Aereo operates like the olden days of Cable TV. In its humble beginning, cable TV took over the air signals and ran it to people's homes, because distance from broadcast towers, and natural obstructions, prevents a reliable signal.

It is interesting that Aereo did win in three other other appeals courts. Though, the 10th district is a very conservative court. As is the state, for which this case was heard.

As this will end up in the Supreme Court, it could prove interesting; if they find for Aereo. CBS and FOX have threatened to go way from over the air and only run their contents as pay networks. NBC and ABC, have made similar threats. Honestly, what these networks air would I not consider paying extra for, beyond what I am forced to pay to get locals on DirectTV. Of course, in Denver, I get over 15 channels as locals. But, CBS or FOX for $5/month; I do not think so.

This is a classic case where our do nothing Congress needs to do something. Local station are provided public frequencies to broadcast. While they own the copyright, on programming, they do not own the frequencies they broadcast on. Be it over the air, on cable or on satellite; the US Government (NIST and FCC) determine teh standards and the frequencies; and, how they are allocated and used.


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## dpeters11

lparsons21 said:


> The title of the news on the home page is incorrect. They haven't lost at all since it hasn't been tried.


I should have read the decision. The judge ruled against Aereo but stayed the decision pending the Supreme Court.


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## Reaper

lparsons21 said:


> The title of the news on the home page is incorrect. They haven't lost at all since it hasn't been tried.


+1


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## James Long

They lost ... they just do not have to pay the penalty (follow the injunction prohibiting them from operating) due to the judge taking in to consideration the pending Supreme Court case.

A win for Aereo would be for the judge not to issue the injunction. The judge is clearly saying what Aereo is doing is wrong and they should not be in business.


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## gully_foyle

Copyright went off the rails the moment they started extending existing copyrights, to keep works out of the public domain. At that point who was stealing from whom became unclear..


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## lparsons21

James Long said:


> They lost ... they just do not have to pay the penalty (follow the injunction prohibiting them from operating) due to the judge taking in to consideration the pending Supreme Court case.
> 
> A win for Aereo would be for the judge not to issue the injunction. The judge is clearly saying what Aereo is doing is wrong and they should not be in business.


Not true James. No more than the failure in other appeals courts to get an injunction was a 'win'.


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## James Long

lparsons21 said:


> Not true James. No more than the failure in other appeals courts to get an injunction was a 'win'.


That is the point. Some people seem to dance in the streets when an injunction is not issued as if the case is over and the defendant has won. The decision not it issue an injunction is positive, but is not a final victory.

Having an injunction enforced is a serious loss as the defendant must cease operations (and potentially lose money) until the case is finished. If the defendant ends up winning they may end up getting some compensation from the plaintiff but being out of business hurts their growth. Injunctions may go unenforced if the plaintiff is unwilling to post a bond to cover the possibility that they would lose and owe the defendant for those loses. A stayed injunction keeps the defendant in business ... potentially building up further damages that would need to be paid to the plaintiff if they eventually lose.

The difference here is what happens after the Supreme Court decision. If the Supreme Court sides with Aereo business continues ... but if the Supreme Court goes against Aereo they will send the decision back to the lower courts to handle. In the other districts the lower courts will have to revisit the decisions and injunctions - in the 10th there is an injunction ready to be put in to effect.


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## Athlon646464

*Update: **Aereo wins a grace period from injunction, keeps Denver and Salt Lake City open*

Some broadcasters might have recently scored a victory against Aereo in court, but they can't party just yet. The startup just got a 14-day grace period from a six-state preliminary injunction (it has won its share of court battles, and this is considered its biggest legal setback thus far) handed down last week. That means the over-the-air TV service can continue any expansion plans in Colorado, Montana, New Mexico, Oklahoma, Utah and Wyoming... at least for a while.

Full Story Here









_Engadget_


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## Athlon646464

*Update: **Department of Justice comes out against Aereo's TV streaming in Supreme Court case*

It's never a good idea to make an enemy of the federal government, and it appears that Aereo now finds itself in just that predicament. On Monday, the US Department of Justice came out in favor of the broadcasters that oppose Aereo in a case currently before the US Supreme Court.

Full Story Here


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## Athlon646464

*Update: Aereo Attracts Support From Dish Network, EFF & More For SCOTUS Hearing*

With less than three weeks before Aereo argues its case in front of the Supreme Court, amicus briefs today supporting the subscription streaming service in its battle against the broadcasters were being filed fast and furiously. Supporters of the Barry Diller-backed company have until 11:59 PM ET to add their voices to the cause.

On the plaintiff's side, SAG-AFTRA, Viacom, Time Warner and Warner Bros Entertainment, the NFL and MLB are among those who have come out against Aereo.

Today's briefs from Dish Network, the Electronic Frontier Foundation, the American Cable Association and more come less than a week after Aereo firmly responded to the broadcaster's February 24 brief and the same day Diller said that Aereo could be "finished" if it loses before the SCOTUS....

Full Story Here


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## nmetro

Knowing the makeup of the Supreme Court, chances are they will find against Aereo. Too bad, because they have a nice concept. One really does get a mini-antenna which picks up signals for each customer. But, for some reason, the courts think Aereo is nothing more than Cable TV, except it is over the internet. Never mind that all its doing it setting up an antenna, and IP address, and cloud storage. No different than any streaming site, except the antenna part.

Big corporate oligarchs are trying to quash Aereo, because if allowed to operate, it would put an end to the billions of dollars they rob subscribers for transmission consent. Again, it is not what Aereo is doing, it is about the money the CEOs and stock holders want in their pockets.

I was just about to sign up, so I could get the sub channels that DirecTV does not carry, but Denver signup was blocked right before I could do it.

Another case where ignorance of technology meets the legal system.


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## KyL416

nmetro said:


> One really does get a mini-antenna which picks up signals for each customer.


Let's not start this argument again. Just read the posts in the other Aereo thread. Antennas that close are not functioning alone because of wavelengths. And others have basically reversed engineered their system to debunk the one antenna and channel per subscriber claim. (Shared streaming servers, the delay to "prep" an antenna is a fake javascript delay, the ability to watch multiple channels at the same time and instantly by changing the publishing point on the url, the so called live DVR feature is something built into the open source media player, a player used by other sites like BBC and RTE for their live streams, and works with any HDS stream, etc)


> But, for some reason, the courts think Aereo is nothing more than Cable TV, except it is over the internet.


That's exactly what Cable TV was in the beginning, Community Antenna Television, the difference is they are not getting permission from the networks first. And Aereo made themselves look more like a MSO than a community antenna service when they started offering Bloomberg, a non OTA channel as part of their service.


> No different than any streaming site, except the antenna part.


Unless you're going to a site with a bunch of unofficial streams, ANY streaming site needs consent from the rights holder of the programming. Whether it's the network, studio, producer or sports league. In this case even the networks don't have the rights to stream everything online to all platforms. (i.e. the NFL made an exclusive deal with Verizon for mobile rights, so WatchESPN and the live WatchABC streams for ABC affiliates that carry Monday Night and Thursday Night football games locally like WPVI cannot show them on cell phones, Fox Sports's live stream of the Super Bowl was limited to tablets and computers, until ESPN made their new deal with MLB at the end of 2012 they had to blur the screen anytime MLB highlights appeared on SportsCenter)

This ruling will decide if using the internet as the last mile of delivery exempts them from any regulations that apply to MSOs (i.e. must carry/retransmission consent, EAS, Descriptive Video, Closed captioning), and pretty much create a loophole bypassing any exclusive contracts sports leagues have for over the top distribution.


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## Satelliteracer

nmetro said:


> Knowing the makeup of the Supreme Court, chances are they will find against Aereo. Too bad, because they have a nice concept. One really does get a mini-antenna which picks up signals for each customer. But, for some reason, the courts think Aereo is nothing more than Cable TV, except it is over the internet. Never mind that all its doing it setting up an antenna, and IP address, and cloud storage. No different than any streaming site, except the antenna part.
> 
> Big corporate oligarchs are trying to quash Aereo, because if allowed to operate, it would put an end to the billions of dollars they rob subscribers for transmission consent. Again, it is not what Aereo is doing, it is about the money the CEOs and stock holders want in their pockets.
> 
> I was just about to sign up, so I could get the sub channels that DirecTV does not carry, but Denver signup was blocked right before I could do it.
> 
> Another case where ignorance of technology meets the legal system.


Uhm, actually the individual antenna is not doing that. This is part of the problem. Its an array, not a dedicated antenna for each customer.

The bigger issue, however, is that they don't have the consent or right to do what they are doing. Cable asked that permission, negotiated it, etc. Aereo decided to skip that little part.


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## Stuart Sweet

Well said, Mr. Racer. But as I've said before in other forums, the matter of what Aereo is doing and whether it's fair is not really at issue. The issue is that the FCC is failing to act to close a loophole that Aereo has the legal right to exploit. All they would have to do would be issue a rule change that said that operating an array of individual antennas for the purpose of offering a paid service that provides television programming is tantamount to retransmission. They could even use those exact words.

I'm not sure if it would require congressional approval, but the fact that the FCC hasn't even tried to address this at all, relying instead on legal challenges to shape the argument, says a lot about them


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## dpeters11

Right, and Aereo is charging for the service and operating as a for profit business. Big difference from free OTA with a home antenna.


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## Nick

Whether I choose to receive a broadcaster's signal over the public airwaves (free-to-air) or through an intermediary
such as CCTV, commercial cable or a pay internet service like Aereo should be my choice. A book, once paid for,
can be read by many people. A song can be heard by more than a single person. Why should a tv broadcaster be
able to charge multiple times for the same content?

I hope Aereo is successful based solely on principal.


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## James Long

Stuart Sweet said:


> The issue is that the FCC is failing to act to close a loophole that Aereo has the legal right to exploit. All they would have to do would be issue a rule change that said that operating an array of individual antennas for the purpose of offering a paid service that provides television programming is tantamount to retransmission. They could even use those exact words.


Personally I don't see a loophole where Aereo operates ... I see the deliberate redefining of terms. Retransmission is retransmission whether they have one antenna or a million. The concept of retransmission needs to be honored in the decision.

If The FCC has to adjusts definitions for Aereo then the next Aereo will simply work one step outside of that line. But if the concept of "what is retransmission" is upheld there is no line to move.


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## Satelliteracer

Nick said:


> Whether I choose to receive a broadcaster's signal over the public airwaves (free-to-air) or through an intermediary
> such as CCTV, commercial cable or a pay internet service like Aereo should be my choice. A book, once paid for,
> can be read by many people. A song can be heard by more than a single person. Why should a tv broadcaster be
> able to charge multiple times for the same content?
> 
> I hope Aereo is successful based solely on principal.


Don't forget, as recently as two years ago the Supreme Court was ruling whether you could resell a book. Something called the "first sale" doctrine is the law which governs this activity.

Not sure in your example how the programming is one paid for, however. If Aereo was offering this at no charge, just like an OTA, I don't think you would have the networks upset. Simple reason is they are getting retrans fees right now from cable, telco and satellite providers. They don't receive any from someone that has an OTA. Once you start charging for their created content, they're going to perk up and take notice.


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## James Long

Satelliteracer said:


> Don't forget, as recently as two years ago the Supreme Court was ruling whether you could resell a book. Something called the "first sale" doctrine is the law which governs this activity.


The first sale doctrine allows a person or company who legally obtains a copyrighted work to sell or dispose of that property in any way they see fit. Buy a legal copy of a textbook in Thailand, import it to the US and sell it and the Supreme Court will allow you to do so (according to a case decided in March 2013). But that book is a physical object.

The logic gets more complicated when it comes to digital material.

Under copyright law selling or disposing of the property in any way they see fit does not include making copies. If I legally buy a copy of a song on iTunes can I legally sell it by converting it to a WAV format and then deleting the song from my iTunes? Can I burn the song to a CD ROM as a collection as long as I legally obtain each original copy and delete the originals after the burn? The transcoding process is making a copy.

And that is where Aereo hits a problem. Assume they were a small company using a single antenna, single tuner and had one customer. One could argue that they legally obtained the programming of a local TV station over the air on their single antenna and single tuner, and the copy they sold their one customer was transferred to the customer - the original programming was not kept. They are in the business of making copies of TV broadcasts - and whether those broadcasts are delivered seconds after reception or stored on a server until viewed (and potentially viewed again) what they offer to their customers is NOT the original program. It is a copy. And the copy cannot be transferred without the permission of the rights holder.

Multiply one into the thousands of antennas (acting as an array, whether intentional or not), thousands of tuners, thousands of recording devices and thousands of customers and it gets a lot harder to say that they are not operating just like a cable or satellite system that receives, transcodes and delivers programs to customers for a price. Which should place them under cable and satellite's rules for rebroadcasting copyrighted content.

Theoretically DirecTV receives each local TV station, transcodes it and uplinks it ONCE to a satellite system. If there is a SD and HD feed they would uplink it twice. DISH has locals that are uplinked to both of their arcs and could be uplinked three times (HD east arc, HD west arc, SD west arc). But for the sake of argument, lets look at a station that is only uplinked once. Is DirecTV making a copy of that feed? They are receiving one signal and transmitting one signal - should it matter how many people can receive that one signal?

Such twisted logic would make it possible for DirecTV to sell their legally obtained OTA signal however they wanted without violating copyright law (Theory: DirecTV isn't making a copy - they are just transcoding the signal once). DISH could put up three antennas and three tuners and transcode the feeds separately for each arc through twisted logic. Cable systems could convert one signal to QAM or pass through the ATSC frequency shifted and not be making a copy under such logic.

The twisted logic fails because what DirecTV, DISH and cable does is considered re-broadcasting. It would be considered rebroadcasting even if they only had one customer. And that is the way it should apply to Aereo.


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## Laxguy

Interesting to speculate what we'd have now if the FCC had ruled that re-broadcasting was just fine, and no rights accrued to the original broadcaster. Well, it could have happened!


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## kenglish

Laxguy said:


> Interesting to speculate what we'd have now if the FCC had ruled that re-broadcasting was just fine, and no rights accrued to the original broadcaster. Well, it could have happened!


It would just mean that your local stations would all be home shopping channels, and there would be no news, no local production and no one to answer the phone when you call them. Think "Mega-Corp radio".....


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## Laxguy

kenglish said:


> It would just mean that your local stations would all be home shopping channels, and there would be no news, no local production and no one to answer the phone when you call them. Think "Mega-Corp radio".....


No. 
Stations would be selling ads as they do now, counting noses of OTA and subscription services, as they do now. They just wouldn't have the direct revenue from sat and cable companies.

I am more interested in other facets of that hypothetical.


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## James Long

Laxguy said:


> Interesting to speculate what we'd have now if the FCC had ruled that re-broadcasting was just fine, and no rights accrued to the original broadcaster. Well, it could have happened!





kenglish said:


> It would just mean that your local stations would all be home shopping channels, and there would be no news, no local production and no one to answer the phone when you call them. Think "Mega-Corp radio".....


It depends on if the other protections built into the current law survived.

The original problem was a satellite company picking up local network stations and transmitting them nationwide - which violates the affiliation agreements of the stations and could, theoretically, lead to the problems kenglish proposes. Now that the satellite market has grown to a combined 34 million "subscribers" one could calculate that nearly a third of television viewers would be able to receive a completely out of market feed and not their local station. (Subscriber counts include a calculated number representing commercial accounts - so it is inaccurate to say the subscriber number is the number of television households. But it is the number we have to work with.)

The decision of the courts was that satellite companies could not do that ... and the law passed by Congress that allows re-broadcast was written to respect the affiliation agreements ... delivering local channels only into their local markets (defined by Nielson - not their actual RF coverage) and allowing out of market "distant" stations only where no local affiliate covered the viewer. Not a horrible law as it gave permission overriding the court decision.

Where the system fails is with "consent to carry". I don't mind the regional restrictions that protect the affiliation agreements networks have worked out with their stations. But the "consent to carry" system where a station transmitting a freely received OTA broadcast can refuse to have that signal delivered to customers they should be reaching is wrong.

So keep the regional restrictions ... protect the local stations from being replaced by an out of market affiliate. But get rid of consent to carry. All it has become is an additional revenue stream for something the station is already supposed to be doing ... reaching their own market with their TV signals. The benefit of reaching more TV homes should be payment enough.


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## jsk

Scenario: If I live in an apartment building and have a sling box with an OTA tuner connected to my apartment's OTA antenna, that would be legal, right? 

So, what if I were to be able to rent rack space in a server room, rent an OTA tuner that is connected to a common OTA antenna and a Sling box. Why wouldn't that be legal? That is very much like what Aero is doing except they claim to be also renting out a dedicated antenna to you as well and the electronics are packed into a smaller space. I don't even think they should have to give you your own antenna, just so you have your own tuner and stream.

If the courts rule against Aero, then would Sling boxes/adapters also be considered illegal? I wonder if that is why Dish is concerned with this. Also, they would probably want to take over Aero and integrate the technology in their receivers, which would mean no more retrans battles in Aero markets.

Also, would it be legal for people to rent equipment only "apartments" with their own mailing addresses? Each "apartment" would have an Internet connection and a coax cable connected to either an OTA antenna, local cable service (connected by the local cable company), Dish Network dish or DirecTV dish. Each "tenant" would have to purchase their own legal subscriptions using the mailing address as the service address. The tenants could rent various pieces of equipment such as OTA tuners, cable/satellite boxes and technologies like Sling that would provide them with their own stream from their equipment. Of course, no pets would be allowed.


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## James Long

jsk said:


> If the courts rule against Aero, then would Sling boxes/adapters also be considered illegal?


If I were to buy a VCR (or in this century, a DVD recorder) and record television programs for distribution to others that would be illegal. Such illegal use does not make the VCR or DVD recorder illegal. The use of a device for an illegal purpose does not make all uses of that device illegal.

If the use of a device for an illegal purpose made that device illegal there would be no guns. There would also be no cars since they have been used for crimes ranging from speeding to homicide (not to mention they can be illegally parked). One can commit crimes with many everyday items ... someone falsely reports a crime on a telephone and all telephones become illegal? Someone strangles a woman with her own clothes and clothing becomes illegal? (That one would conflict with public indecency laws.)

The Slingbox would be like the VCR ... it would not become illegal simply because it could be used for illegal purposes.


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## kenglish

Laxguy said:


> No.
> Stations would be selling ads as they do now, counting noses of OTA and subscription services, as they do now. They just wouldn't have the direct revenue from sat and cable companies.
> 
> I am more interested in other facets of that hypothetical.


You mean, "Like radio stations still have staffs of live DJ's, and do big remotes....."?

Truth is, many stations are barely surviving only due to the retrans money they get. Without it, plenty of stations would just have to close their doors.
The "numbers" in the ratings are only a selling-point for the number one and (maybe) number two stations in a market. Commercials are sold cheaply to all comers, and the fees make up the difference between life and death.


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## Laxguy

For some, no doubt. There'll always be marginal operators in most industries. 

But while it'd put the screws to some, most stations would remain competitive, pulling a lot of material from the mother ship, but maintaining a decent news and weather staff.

I don't see how Radio DJ's fit into a discussion of TV retrans fees.


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## James Long

Laxguy said:


> I don't see how Radio DJ's fit into a discussion of TV retrans fees.


DJs are expensive ... especially good ones. Random voiceovers are less expensive. When one is cutting costs the people are often the first to go. In TV it would be local produced programming and local news that would get the axe. There would be more infomercials when not in network programming. Assuming the channel could afford to be a network affiliate.


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## Laxguy

James Long said:


> DJs are expensive ... especially good ones. Random voiceovers are less expensive. When one is cutting costs the people are often the first to go. In TV it would be local produced programming and local news that would get the axe. There would be more infomercials when not in network programming. Assuming the channel could afford to be a network affiliate.


How many live Dj's on TV since American Bandstand? Or maybe Mtv, etc. Yes, good ones are expensive, but local DJ's? Live DJs are a luxury, and are pretty scarce even on radio.

Nonetheless, there would still be local TV news in the absence of retrans fees, though I concede some marginal stations would go under.


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## James Long

Laxguy said:


> How many live Dj's on TV since American Bandstand?


You changed the topic. You said "I don't see how Radio DJ's fit into a discussion of TV retrans fees." It is an example how something considered important - perhaps even the most important element - is lost with cost cutting.

Radio without DJs? Like a jukebox without personality? Fairly common now ... and fairly silly as it was the personalities that made the station better than the next station over playing the same songs.

TV stations were built around the concept of serving the community ... and local produced programming and news/information programming filled that need. Now cheap syndication and paid infomercials fill the hours. Including hours once filled with news.



Laxguy said:


> Nonetheless, there would still be local TV news in the absence of retrans fees, though I concede some marginal stations would go under.


It is a shame that stations were given this as a revenue stream instead of access to viewers. I have no issue with must carry laws ... I disagree with consent to carry and the fees consent allows. Stations survived without a pay per satellite/cable viewer system in the past. They should be able to survive without the extra extortion.

And if they do get the extra fees viewers should get what they are paying for ... less syndicated/infomercial crap and more local production.


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## Laxguy

It was kenglsih who introduced radio DJs to the discussion. I see the analogy, but that's what it is.

I agree with the rest of your post, but wonder if even canned DJ's might have personalities? At least some of them! 


James Long said:


> You changed the topic. You said "I don't see how Radio DJ's fit into a discussion of TV retrans fees." It is an example how something considered important - perhaps even the most important element - is lost with cost cutting.
> 
> Radio without DJs? Like a jukebox without personality? Fairly common now ... and fairly silly as it was the personalities that made the station better than the next station over playing the same songs.


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## kenglish

My comment about radio DJ's was due to the fact that radio and TV are both part of the Broadcast industry, and radio has already fallen greatly, due to the lack of advertising income, and the excess regulations that their competitors do not face. I see the same path being taken by the Television side of the industry.


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## Laxguy

kenglish said:


> My comment about radio DJ's was due to the fact that radio and TV are both part of the Broadcast industry, and radio has already fallen greatly, due to the lack of advertising income, and the excess regulations that their competitors do not face. I see the same path being taken by the Television side of the industry.


And it's understandable, but I do think radio's decline has more to do with a changing world than regulations. Ad revenue is a function of number of ears tuned in, and those are affected by many things. Competition from sat. radio, Pandora, Spotify, etc. as well as TV have diminished the marketplace for radio.


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## James Long

If the alternatives to radio had to worry about picture quality as much as the alternatives to TV/satellite/cable then radio might have had a better chance. For now they have to live in the margins of profitability trying to make a little money often enough to survive or provide something that truly competes. Not a bad thing.

My local radio station plays too many commercials and has an annoying morning show. I can get the music and less banter via satellite. Guess what I listen to?

Somehow the "less popular" stations in the TV market are surviving as "must carry" (no payment from cable or satellite) stations. The "consent to carry" stations should be able to make it on their popularity and ad revenue. But the "because we can" fees must be paid.


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## coolman302003

Interesting article; including images and a brief video taking a closer look at how Aereo works behind the scenes.

Aereo Shows Off Their Rooftop Antenna Farm Ahead Of Supreme Court Ruling (TechCrunch)


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## coolman302003

Ahead of Supreme Court trial, Aereo opens lobbying and advocacy site at ProtectMyAntenna.org

http://blog.chron.com/techblog/2014/04/aereo-lays-out-its-supreme-court-case-at-protectmyantenna-org/#22153101=0

http://www.bizjournals.com/boston/blog/techflash/2014/04/aereo-launches-advocacy-website-as-supreme-court.html

http://blog.seattlepi.com/techblog/2014/04/17/aereo-lays-out-its-supreme-court-case-at-protectmyantenna-org/#22153101=0

http://www.dslreports.com/shownews/Aereo-Launches-Protect-My-Antenna-Site-Ahead-of-Court-Date-128602

http://www.engadget.com/2014/04/17/aereo-lobbying-site/


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## SayWhat?

kenglish said:


> My comment about radio DJ's was due to the fact that radio and TV are both part of the Broadcast industry, and radio has already fallen greatly, due to the lack of advertising income, and the excess regulations that their competitors do not face. I see the same path being taken by the Television side of the industry.





Laxguy said:


> And it's understandable, but I do think radio's decline has more to do with a changing world than regulations. Ad revenue is a function of number of ears tuned in, and those are affected by many things. Competition from sat. radio, Pandora, Spotify, etc. as well as TV have diminished the marketplace for radio.


The decline of broadcast radio rests solely at the feet of _Clear_ Channel _Communications_ and other megalopolies.


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## Laxguy

SayWhat? said:


> The decline of broadcast radio rests solely at the feet of _Clear_ Channel _Communications_ and other megalopolies.


Could you kindly elaborate?


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## KyL416

Laxguy said:


> Could you kindly elaborate?


Clear Channel consolidating most of their operations, firing most of the local DJ's in their mid and small market stations, replacing them with a satellite based format called "Premium Choice" made up of DJs from their major market stations with pretaped "live" local ads read by someone who can't pronounce any of the local cities and streets correctly. Along with a playlist dictated from corporate that doesn't take into consideration any of the local music tastes.

The best is this failure at the Boston Jingle Ball where despite it being known that the headliner was stuck in NYC because of a snowstorm before the doors opened, they continued to have their DJs say she's backstage and will be on stage soon during the "live" backstage reports:
http://www.spin.com/articles/boston-radio-station-lied-miley-cyrus-at-jingle-ball/


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## SayWhat?

> On a final exam, University of California Berkeley law professor Pamela Samuelson asked her copyright class to answer whether Aereo is, essentially, a true technological innovation or just a legal one. It's a nuance the Supreme Court will consider, too, Tuesday as it ultimately weighs on whether Aereo's service to stream local over-the-air broadcast TV is violating the copyrights of the television broadcasters that are suing to stop it.
> 
> "My poor students were suffering enormously," Samuelson said, after they complained about the difficulty of the Aereo question. "I told them, 'I was really interested in what you thought!'"
> 
> Why? Digital copyright expert Samuelson isn't certain how the Court is likely to go on the case, which sets the stage for reinterpreting video and digital law in today's technology-laced era. The legal minds of Berkeley aren't alone. Professors from many of the country's top law schools say it's unusually hard to predict because the Supreme Court's track record in copyright varies, because copyright law is politically ambiguous and because an Aereo decision could radically change not only how the US interprets copyright in the digital age but also what technologies -- some of which are the bedrock of the Internet itself -- are infringing upon it.





> This is where copyright law comes in. The Copyright Act of 1976 distinguishes between public performances and private performances. Private ones aren't subject to copyright rules, which is why you don't need to pay a copyright holder when you watch TV in your living room. Public performances, such as a cable or satellite company funneling channels to its customers en masse, are subject to copyright and required to pay a fee.


http://www.cnet.com/news/why-the-aereo-supreme-court-case-over-tvs-future-is-too-tough-to-call/

Now, see, I don't consider cable or satellite to be public performances. There are delivery methods to facilitate private viewing inside one's home.

A public performance would be a program displayed on a TV screen in a bar where 100 or so people could view it at the same time as they wander in and out of that bar. The delivery method would be irrelevant - OTA, cable, satellite or private feed.


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## SayWhat?

From the same article:



> The evolution of copyright in the US has followed a clear pattern, according to Dotan Oliar, a University of Virginia law professor who has written about the legal trade-off between copyright and innovation. A copyright-based industry makes money under a status quo until a disruptive technology threatens it, the copyright holders go to court or Congress, and the model morphs to a new status quo until the next disruptive technology surfaces, he says.
> 
> Only six cases addressing the same copyright issues as Aereo have actually made it to the Supreme Court over the last 100 years, Oliar said. Once there, however, the pattern ends. The Court has found infringement in some and none in others. It has reversed lower court decisions, and it has affirmed others. "I cannot say, 'Here's the consistent line.' There is no consistent line," he said.


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## Laxguy

KyL416 said:


> Clear Channel consolidating most of their operations, firing most of the local DJ's in their mid and small market stations, replacing them with a satellite based format called "Premium Choice" made up of DJs from their major market stations with pretaped "live" local ads read by someone who can't pronounce any of the local cities and streets correctly. Along with a playlist dictated from corporate that doesn't take into consideration any of the local music tastes.
> 
> The best is this failure at the Boston Jingle Ball where despite it being known that the headliner was stuck in NYC because of a snowstorm before the doors opened, they continued to have their DJs say she's backstage and will be on stage soon during the "live" backstage reports:
> http://www.spin.com/articles/boston-radio-station-lied-miley-cyrus-at-jingle-ball/


Thank you! 
But while that speaks to the decline of the quality of radio broadcasts and the loss of many local DJ's, Clear Channel is the mechanism, and economics is the driving force, on top of large changes in technology including internet delivery.


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## SayWhat?

Laxguy said:


> But while that speaks to the decline of the quality of radio broadcasts and the loss of many local DJ's, Clear Channel is the mechanism, and economics is the driving force, on top of large changes in technology including internet delivery.


You're wagging the dog.

Clear Channel took the Walmart/Borg approach. Be assimilated or die. They bought everything in sight and applied pressure to those who refused until they either gave in or were forced to sell. If they sold to somebody else, Clear Channel bought the new guys out.

The local DJs weren't dropped by economics. Some were offered jobs in the computerized environment, other were told to take a long walk off a short pier.

It's because of CC and their ilk that I stopped listening to radio. It's not because the stations died due to lack of listeners to where CC could come in and buy up the carcases and relaunch them. They would take over the top stations in a market, change the popular format to their robo format and drive people to CDs.


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## Athlon646464

*Update: **The Aereo Supreme Court Case Is About to Change TV Forever*

Aereo heads to court against the nation's largest broadcasters, which claim the service amounts to theft because the startup pays nothing to capture and sell their free, over-the-air broadcast signals

Upstart Internet video company Aereo will square off against the nation's largest TV broadcasters on Tuesday (April 22, 2014) in one of the most closely watched Supreme Court cases involving the media business in years. The outcome of the case could have important implications for Internet streaming, cloud computing, and the future of the TV industry itself....

Full Story Here









*Chet Kanojia, founder and CEO of Aereo, Inc., stands next to a server array of antennas in New York, Dec. 20, 2012.*​_Time_


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## Laxguy

That'd be one court case I would love to watch! I checked CNN's listing, and nothing specific about it. I don't even know how to check C-Span!


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## Athlon646464

Laxguy said:


> That'd be one court case I would love to watch! I checked CNN's listing, and nothing specific about it. I don't even know how to check C-Span!


Although the Supreme Court does not allow camera, C-SPAN is having discussions about the oral arguments.

See: http://www.c-span.org/


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## Laxguy

Thanks! 
I was astounded at the variety and number of very non-current topics on C-S 3:



5:01AM
Ronald Reagan 2014 Symposium, Part 1


7:07AM
Ronald Reagan's Foreign Policy


8:01AM
Department of Energy Fiscal Year 2015 Budget Request


9:36AM
Foreign Assistance Fiscal Year 2015 Budget Request


11:48AM
Homeland Security Fiscal Year 2015 Budget


2:02PM
Whistleblower Tour


2:09PM
General Motors Ignition Switch Recall


2:58PM
FBI Fiscal Year 2015 Budget Request


5:24PM
Department of Labor Fiscal Year 2015 Budget Request


6:26PM
Fiscal Year 2015 Budget for Intelligence Activities


6:53PM
Interview with Michael O'Rielly


8:00PM
1963 Interview with Malcolm X


8:45PM
Life and Assassination of Malcolm X


WEDNESDAY

April 23, 2014



8:00PM
General Joseph E. Johnston and the Atlanta Campaign


8:50PM
General A.J. Smith's Guerrillas and the Battle of Nashville


9:35PM
Confederate Weapons Manufacturing in Georgia


10:35PM
General Patrick Cleburne


THURSDAY

April 24, 2014



8:00PM
Jill Wine-Banks Oral HIstory Interview


9:35PM
Charles Colson Oral History Interview


11:00PM
Elizabeth Holtzman Oral History Interview, Part 1


11:29PM
Elizabeth Holtzman Oral History Interview, Part 1


SATURDAY

April 26, 2014



8:00AM
1968 U.S. Army Film _Suicide: The Unheard Cry_


9:00AM
Theodore Roosevelt and the Great War


10:00AM
National Cryptologic Museum, Part 1


10:30AM
Recorded History of the U.S. Congress


12:00PM
Evolution of the White House Correspondents Association


1:10PM
U.S. Colored Troops


2:00PM
Fred Martin on "Lincoln's 1864 Re-Election"


2:50PM
Gays and Lesbians in Early 20th Century America


4:00PM
Book Discussion on _The Emporer's New Clothes_


5:05PM
Library of Congress Lincoln Collection


6:00PM
Confederate Weapons Manufacturing in Georgia


7:00PM
General Patrick Cleburne


8:00PM
Women's Sports and Title IX


9:05PM
1890 Wounded Knee Massacre


10:00PM
Confederate Weapons Manufacturing in Georgia


11:00PM
General Patrick Cleburne


11:59PM
Women's Sports and Title IX


1:05AM
1890 Wounded Knee Massacre


2:00AM
Book Discussion on _The Emporer's New Clothes_


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## Laxguy

I didn't see anything airing until Friday evening at 8 PM—on regular C-Span.... But just 'cause I didn't see it, doesn't mean it wasn't there!


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## Athlon646464

Laxguy said:


> I didn't see anything airing until Friday evening at 8 PM-on regular C-Span.... But just 'cause I didn't see it, doesn't mean it wasn't there!


Today at 11:30 eastern:

http://www.c-span.org/video/?318981-1/abc-v-aereo-oral-argument-reaction


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## mrdobolina

I was reading the Time article, and something struck me. Well, 2, maybe 3, maybe more things. Before I start, I'm neither a lawyer nor a tech design genius. In my highly-unknoweldgeable-about-the laws-that-matter-in-this-case opinion, Aereo seems to be in the wrong simply because they are rebroadcasting something without compensating the original broadcaster, and they are charging for that rebroadcast. I like to think of this like MLB's disclaimer on every game that is broadcast: "blah blah blah, rebroadcast of this game without the express, written consent of MLB is expressly prohibited, blah blah blah." At the same time, I think Aereo is on to something, something that Big Broadcasting should have figured out long ago and used to embrace the sea change that is (needs) to happen. 

So, if (when) Aereo loses this case, what should they do? Could they (instead of making viewers pay for their service) offer the service for free and somehow mix in their own advertising and monetize that way? Again, not sure of the legality of this. Or, could they sell their technology directly to the big broadcasters and allow them to offer this subscription service to all of their viewers? 

Or, my other idea is this: The Aereo CEO claims they are selling technology, not OTA TV. If that's true, why not offer an antenna decoder box for a flat fee to consumers? A box that hooks up to an antenna and also hooks up to your home router. One model might be just a straight streamer. Another might have DVR functionality with a hard drive inside. Then, much like TiVo, they can offer a subscription service to their customers that enables all of the features of the box: Streaming OTA TV to devices/computers, DVR features, TV to go features, etc. 

Could ANY of this work? Could something like my box idea actually be a boon to satellite providers?


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## KyL416

There's already in home technology that does that like the Slingbox, HDHomerun and Tivo's newest model of DVR. You can even do it yourself with a tuner card and open source Media Center software like XBMC or MythTV.

I like how they finally showed a picture of those antennas in action and labeled them as arrays, they cannot operate independently that close because of the wavelengths. (I also wonder if the holdup of the previously announced launch in Philly was because the ABC affiliate is on RF6 along with two other channels on RF2 and RF4 and those antennas cannot pick up a reliable VHF lo signal)

Their big investor Barry Diller is saying if they lose Aereo is dead, which kind of shows where their true intentions lie. The court could rule that they have a right to operate but they are no different then a cable or sat provider so they have to abide by the rules like retransmission consent, closed captioning, SAP, EAS and others. It also gives them their own set of protections that would allow them to expand into a true over the top TV solution, like OTA and cable channels cannot refuse to negotiate with them and they can file complaints if negotations aren't done in good faith. If it was just about the technology they would still provide this service as it's perfect for cases where the ATSC comittee blew it big time when choosing a system that fails in the multipath conditions that occur while you're in motion like riding in a car or train and needs a strong signal that won't work in most areas with the standard telescopic antenna that most analog pocket TVs had. Some manufacturers had pocket ATSC TVs early on during the transition, but as soon as they were used in real world situations and didn't work, they stopped production of them.


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## Bill Broderick

mrdobolina said:


> Aereo seems to be in the wrong simply because they are rebroadcasting something without compensating the original broadcaster, and they are charging for that rebroadcast.


Aereo's argument is that, because they have individual antennas for each customer utilizing the service at any given time, they aren't *broad*casting anything. They are sending the signal collected by each antenna to one customer at a time. That's the opposite of broadcasting. They are essentially, renting the customer an antenna, that he or she can use to receive an OTA signal from the local TV stations.

If you had an antenna on the roof of your house and ran that signal to something like a slingbox, that could then send it to your TV via wire or to your computer, phone or tablet via the Internet, should that be illegal? Currently, it isn't.

Aereo's business is to rent you that antenna and slingbox-like device.

Broadcast retransmission laws were written well before a business like Aereo was ever a possibility. IMO, the correct Supreme Court decision would be that Aereo isn't doing anything wrong, based on current laws. If Congress wants to pass new laws to address technology such as Aereo, they should do so. But, it's Congress' job to pass new laws, not the Supreme Court's.


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## Stuart Sweet

Well put Mr. Broderick. If Congress and the FCC would properly redefine "retransmission" so that it encompasses anything that operates in a manner which competes with ATSC OTA (which would include cable, satellite and Aereo but would not include cloud services like Google Drive) then this wouldn't need to go through the courts.

The court is involved because lower courts have differed in their interpretations however, so it must decide one way or the other.


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## James Long

Chief Justice John G. Roberts Jr. said:


> "Your technological model," Chief Justice John G. Roberts Jr. told Aereo's lawyer, "is based solely on circumventing legal prohibitions that you don't want to comply with."





Justice Stephen G. Breyer said:


> "What disturbs me on the other side," Justice Stephen G. Breyer said, "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."





Justice Sonia Sotomayor said:


> Justice Sonia Sotomayor did not seem persuaded. "It's not logical to me," she said, "that you can make these millions of copies and essentially sell them to the public."





Justice Ruth Bader Ginsburg said:


> Justice Ruth Bader Ginsburg said Aereo's business was built on taking content without paying for it. "You are the only player so far that doesn't pay any royalties at any stage," she told Mr. Frederick.





Justice Antonin Scalia said:


> Some justices said they found the service suspiciously complicated. "Is there any reason you did it other than not to violate the copyright laws?" Justice Antonin Scalia asked Mr. Frederick.





> At Tuesday's argument, Justice Breyer kept returning to the unknown consequences of a ruling against Aereo.
> 
> "I'm hearing everybody having the same problem," he said of his fellow justices. "I will be absolutely prepared, at least for argument's sake, to assume" that Aereo's service is unlawful.
> 
> "But then the problem is in the words that do that," he said, referring to the decision the court will issue, probably in June. Justice Breyer went on to express concern that a ruling against Aereo might limit other innovations "that will really change life," such as the cloud.


Source: nytimes.com


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## Athlon646464

A ruling will likely come in June. In checking around the 'net this morning it seems about 60/40 in favor of Aereo, according to the pundits and editorials.


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## SayWhat?

I was hoping the Old Coots would have the common sense to throw out the entire pay for retransmission of OTA law.

But somehow, I keep forgetting they've been bought and paid for by Corporate America and almost always rule in favor of Big Business over real people. I can't think of too many business related rulings in favor of the individual.


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## Laxguy

Athlon646464 said:


> A ruling will likely come in June. In checking around the 'net this morning it seems about 60/40 in favor of Aereo, according to the pundits and editorials.


It doesn't matter much what editors and pundits think; it's the Supremes that matter. And based on James' report, it looks like Aero is doomed. At least insofar as not paying re-trans fees.


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## Stuart Sweet

It seems to me, in my relatively uninformed state, that simplification would be the right step here. OTA broadcasting holds a special place in the world of business for two reasons:

(1) because it is dependent on the use of a public resource (the airwaves) for its operation and
(2) because as a consequence of (1) it is required to serve the public interest.

So therefore it seems that the law should boil down to the following:

-Retransmission is defined as the redistribution of a linear audio/video signal (intended for local broadcast) in real time, with a reasonable delay to account for technology. It doesn't matter if it's over a wire, over the internet, rebroadcasting over the air, whatever.

-Recording and playback past a reasonable time delay to account for technology is not retransmission, it's something else with its own laws, so we're not going to talk about that right now except to say that only the end user can record and playback, and only within fair use doctrines, unless allowed by contract.

-If a company (cableco, satellite, Aereo) wants to send the whole signal to its customers without alteration, in other words without changing the commercials, adding overlays etc, then it should be allowed to do so for free, but if it does so it also cannot charge customers beyond the dead net cost of the technology required to do so.

-If a company wants to charge for retransmission of local channels beyond the dead net cost of the technology, they have to pay a retransmission fee.

-However, if the company and the broadcaster can't agree on a retransmission fee structure, the FCC shall have a right to impose a fee structure which it considers fair in order to keep the channel on the air; broadcasters do not have the right to black out local programming since it is considered necessary to serve the public interest.

That's a lot of words but it's actually pretty simple, right?


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## Stuart Sweet

and, according to my proposed law, Aereo in its current state would be illegal if it could be proven that it collects more fees than required to operate the technology, which I presume it does.


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## Athlon646464

Laxguy said:


> It doesn't matter much what editors and pundits think; it's the Supremes that matter. And based on James' report, it looks like Aero is doomed. At least insofar as not paying re-trans fees.


Didn't you just contradict yourself?


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## snowcat

mrdobolina said:


> Or, my other idea is this: The Aereo CEO claims they are selling technology, not OTA TV. If that's true, why not offer an antenna decoder box for a flat fee to consumers? A box that hooks up to an antenna and also hooks up to your home router. One model might be just a straight streamer. Another might have DVR functionality with a hard drive inside. Then, much like TiVo, they can offer a subscription service to their customers that enables all of the features of the box: Streaming OTA TV to devices/computers, DVR features, TV to go features, etc.


The Tablo is a new OTA DVR that does all of this. It's a little box that you connect a hard drive and an antenna, and it connects wired or wirelessly to your home network. You can watch live tv (with pause/rewind/ff) and record/playback shows. It doesn't hook up to a tv directly, but it streams to Roku, AppleTv, Chromecast, iPad app, Android tablet app, and browsers on smartphones and PCs. There is a subscription for guide data and remote viewing (like a Slingbox), but it is reasonable ($4.99 a month, $49.99 a year, or $150 lifetime) and it covers every device on your account for the one price. The 2 tuner version is out now, with the 4 tuner coming in a month or so.


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## James Long

Laxguy said:


> It doesn't matter much what editors and pundits think; it's the Supremes that matter. And based on James' report, it looks like Aero is doomed. At least insofar as not paying re-trans fees.


The quotes were courtesy of the NY Times ... but I would not take them as a precise indication of how the judges will rule. Arguments are arguments ... a good discussion can help flesh out the details of why each judge will vote the way they will vote - a well written opinion when the ruling is announced will help define a rule that expresses (as close as possible) what the judges want to say about the issue.

I do not agree with the way Aereo operates. They skirt the law ... and seem to be going to great extents just to skirt the law. The judges could rule against Aereo's operation as being against the intent of the law - even if the letter is skirted. I don't see how their television retransmission service should be treated any different than cable, satellite or IPTV.

The ruling that cable and satellite companies would support would treat Aereo as equals ... if cable/satellite pays for retransmission so should Aereo. If Aereo doesn't pay then cable/satellite should not pay. The wildest hope of the cable/satellite companies is that the Aereo decision will allow cable/satellite to stop paying. I doubt that will happen.

I expect a ruling that tells Aereo they cannot operate without being subject to the same must carry/consent to carry/ carriage fee negotiations as cable and satellite. The challenges, as the justices have noted, is writing a ruling that does not go too far.

There seems to be an effort to protect personal cloud services. The ability to upload a copy of content to private space and download it elsewhere seems to be protected - even though I see that as a vulnerability. If I had a powerpoint presentation to share I could put it on Dropbox and share it with other users or the world with a URL. If I had a video of the grandchildren playing that I wanted to share I could do the same. Other than ethics what is stopping me from uploading copyrighted content to a private cloud and sharing it?

The decision will need to address the difference between making private copies and sharing those copies. The court seems to want to protect the private copy ... if I wanted to rip a DVD and post it to a private cloud so I could watch it on my cellphone or convert recordings of copyrighted television broadcasts for my own use that seems to be protected - but me giving you the link to that content would trigger a copyright violation: sharing a copy of copyrighted content with anyone else. So write a decision that allows people to fill all the cloudspace they want as long as they do not share the content with others.

Aereo would fail since they are sharing the content they are saving with others. Other remote DVR services such as Cablevision that Aereo is using as a basis for allowing them to host mini-DVRs would succeed as Cablevision pays for the rights to redistribute content. The concept that Aereo is only renting equipment is a stretch. Their advertising and service offering is not focused on equipment rental, it is focused on content delivered. They are selling content.


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## Davenlr

There was a story on NBC last night about it. They said should Aereo win in court, they would just shut down their over the air transmitters in the cities where Aereo is located.

All I could think of is "Im taking my ball and going home" childishness.


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## Nick

Davenlr said:


> There was a story on NBC last night about it. They said should Aereo win in court, they would just shut down their over the air transmitters in the cities where Aereo is located...


...and cause the networks and locals to lose (not loose) ad revenue
due to a _total_ blackout of OTA viewers? That's not going to happen.


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## James Long

Such a blackout would affect cable and satellite viewers as well. Some get a direct feed from a station, but there is a lot of OTA links in the chain.

By ceasing to be OTA the stations would also lose the legal protections they enjoy as OTA broadcasters. They would have to negotiate with cable and satellite companies as if they were cable channels or RSNs - not local broadcasters.


----------



## mrdobolina

snowcat said:


> The Tablo is a new OTA DVR that does all of this. It's a little box that you connect a hard drive and an antenna, and it connects wired or wirelessly to your home network. You can watch live tv (with pause/rewind/ff) and record/playback shows. It doesn't hook up to a tv directly, but it streams to Roku, AppleTv, Chromecast, iPad app, Android tablet app, and browsers on smartphones and PCs. There is a subscription for guide data and remote viewing (like a Slingbox), but it is reasonable ($4.99 a month, $49.99 a year, or $150 lifetime) and it covers every device on your account for the one price. The 2 tuner version is out now, with the 4 tuner coming in a month or so.


Yeah, I had a feeling there was something like this out there already. I knew I had read about it. For some reason, I thought perhaps it was just a kickstarter and not actually real yet.


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## SayWhat?

Decision expected this week.


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## dpeters11

This week will be very interesting.


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## ladannen

dpeters11 said:


> This week will be very interesting.


No kidding. Predicting what the supreme court will do is nearly impossible.
Just this week, this supreme court barely upheld (in a 5-4 vote) a federal law that makes it a crime to lie on a gun application.
http://www.timesdispatch.com/news/national-world/ap/in-va-case-supreme-court-uphold-ban-on-gun-straw/article_8bf0e6ae-f563-11e3-a0a8-001a4bcf6878.html


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## SayWhat?

One TV station's website unscientific poll:









http://www.kens5.com/news/Cutting-the-Cord-Aereo-decision-could-be-turning-point-for-TV-264243721.html


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## yosoyellobo

As a potential cord cutter I been following this case with interest. Even if Aereo loses I see them coming to term with the broadcaster on the use of their technology.


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## dpeters11

Decision is in, 6-3 against Aereo. Scalia, Thomas and Alito dissented.

http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf


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## SayWhat?

Not really a surprise. The Old Goats have been owned by the media for decades.


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