# Keep your fingers crossed Aereo customers. Today's our day in the SCOTUS. **URL:** \ **Category:** Great Debates\ **Created:** [April 22, 2014, 10:15am UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664 "2014-04-22T10:15:13Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [April 22, 2014, 4:43pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/41 "2014-04-22T16:43:12Z")
> [@Mr\_Quatro](#): > > Aereo found a way to cheat the big boys … I can’t believe they made it this far. > > No way are they going to win … if you transfer a video of me mowing my lawn shown on America’s Funniest Home Video’s that I sent in to them … I would want it protected by it’s original broadcaster ABC. > > Movie stars have rights to be paid too … original content is original content. > > They going to lose … I doubt they will lose. They aren’t stealing anything. If Slingboxes are legal (they are), then what Aereo does is legal too. And in fact their entire business model seems built around the law as it exists today. I don’t see any way that the court can find against Aereo, but IANAL. ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [April 22, 2014, 4:48pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/42 "2014-04-22T16:48:43Z")
> [@Mr\_Quatro](#): > > Movie stars have rights to be paid too … original content is original content. > > They going to lose … How, exactly, do you think they get paid from OTA transmissions that aren’t provided by Aereo, and how do you think that changes when it is provided by them? I’ll answer those two questions for you - advertising, and not at all. There’s no reason for them to lose, no suggestion from previous cases that they will lose, and no-one who actually understands what’s happening thinks they will lose. _However_, one way or another they won’t be able to continue with what they’re doing - either the law will be changed or OTA broadcasts will cease. ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [April 22, 2014, 4:52pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/43 "2014-04-22T16:52:03Z")
> [@Procrustus](#): > > Why can’t they continue doing what they’re doing and pay a reasonable licensing fee? a Win-Win. Not if the licensing fee forces them to charge so much more that they no longer have competitive product. I read that they have claimed as such; of course that might simply be hyperbole. ---
**Author:** ![Dewey\_Finn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dewey_finn/32/4222_2.png) [@Dewey\_Finn](https://boards.straightdope.com/u/Dewey_Finn)\ **Post date:** [April 22, 2014, 4:54pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/44 "2014-04-22T16:54:48Z")
> [@ISiddiqui](#): > > Indeed. And that’s what the Aereo supporters are missing here. Aereo is doing basically what cable companies did in cable’s early days and cable had to pay retransmission fees. I don’t think Aereo’s argument that it is leasing you an antenna is going to hold muster, especially if your ‘leased antenna’ can shift (on the bigger antenna) depending on when you access the service. I’d like to see a cite that cable companies paid retransmission fees in the early days. I doubt it. I suspect that those fees only arose in recent years. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 22, 2014, 4:56pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/45 "2014-04-22T16:56:45Z")
> [@Snowboarder\_Bo](#): > > I doubt they will lose. They aren’t stealing anything. If Slingboxes are legal (they are), then what Aereo does is legal too. And in fact their entire business model seems built around the law as it exists today. I don’t see any way that the court can find against Aereo, but IANAL. Their business model is based on the decision in the Cablevision case (Cartoon Network v. CSC). You “don’t see any way” that the Supreme Court might reject Cablevision? You “don’t see any way” that the Supreme Court might find that a particular interpretation of the law is wrong? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 22, 2014, 5:02pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/46 "2014-04-22T17:02:04Z")
> [@Dewey\_Finn](#): > > I’d like to see a cite that cable companies paid retransmission fees in the early days. I doubt it. I suspect that those fees only arose in recent years. Do you consider 40 years to be “recent”? Cable companies pay retransmission fees under the Copyright Act of 1976. In the late '60s and early '70s, the Tele-Promp-Ter and Fortnightly interpreted the copyright statute to find that cable companies weren’t infringing. Congress fairly promptly overturned those decisions, making it clear by statute that cable did have to pay for licensing. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 22, 2014, 5:06pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/47 "2014-04-22T17:06:23Z")
I could be wrong, but it seems to me that the only reason for the Supreme Court to take this case instead of just letting the appeals court’s ruling stand is that they want to revisit Cablevision, which is widely regarded as a bizarre ruling ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [April 22, 2014, 5:11pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/48 "2014-04-22T17:11:38Z")
> [@Acsenray](#): > > Their business model is based on the decision in the Cablevision case (Cartoon Network v. CSC). You “don’t see any way” that the Supreme Court might reject Cablevision? You “don’t see any way” that the Supreme Court might find that a particular interpretation of the law is wrong? No, I dont. Was there some ambiguity in my post that caused you to not understand the words I wrote? Was the statement too complex to be deciphered so that you need further clarification? If you have an argument to make, make it. Mine was already made for me by the 2nd Circuit Court of Appeals. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 22, 2014, 5:22pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/49 "2014-04-22T17:22:27Z")
If you can’t see ANY way for the Supreme Court to disagree with the Second Circuit then you’re not trying to see a way. Cablevision was a very controversial decision. There are many ways that the Supreme Court could disagree with it. I ask for clarification because taken literally, your statement is nonsense. If you don’t mean it literally, then I am offering you a chance to explain what it is you do mean. And your “bare license” type of referral to the Second Circuit doesn’t tell me at all what you believe or understand about the matter. I can assure you that every member of the Second Circuit bench can see ways in which they could be overturned. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 22, 2014, 5:34pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/50 "2014-04-22T17:34:56Z")
By the way, this is the statutory definition of public performance that is being interpreted: > [@](#): > > To perform or display a work “publicly” means— > > (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or > > (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. 17 U.S.C. Sec. 101. The argument here is whether the Cablevision-inspired setup of thousands of tiny antennas (what Aereo calls a private performance) can be legally distinguished from one big antenna (a public performance). ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [April 22, 2014, 5:41pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/51 "2014-04-22T17:41:59Z")
> [@Acsenray](#): > > If you can’t see ANY way for the Supreme Court to disagree with the Second Circuit then you’re not trying to see a way. Yes, I am. I have. I don’t. You don’t appear to be trying to hard to be taken seriously. Did you want to discuss this or did you just want to cast aspersions? If you want to discuss it, go ahead. > [@Acsenray](#): > > Cablevision was a very controversial decision. There are many ways that the Supreme Court could disagree with it. Okay, how about you give us some examples? > [@Acsenray](#): > > I ask for clarification because taken literally, your statement is nonsense. No, showing up and berating a poster without offering any counter-arguments or facts is nonsense. > [@Acsenray](#): > > If you don’t mean it literally, then I am offering you a chance to explain what it is you do mean. Did you not read the post you quoted? Are you unable to understand the words or something? > [@Acsenray](#): > > And your “bare license” type of referral to the Second Circuit doesn’t tell me at all what you believe or understand about the matter. I can assure you that every member of the Second Circuit bench can see ways in which they could be overturned. Are you on the 2nd Circuit Court of Appeals? Do you have sworn testimonials from the justices who wrote _Cablevision_? Do you have anything of substance to add to this discussion, or did you just come in here to blow smoke? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [April 22, 2014, 5:45pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/52 "2014-04-22T17:45:42Z")
> [@Acsenray](#): > > By the way, this is the statutory definition of public performance that is being interpreted: > > 17 U.S.C. Sec. 101. > > The argument here is whether the Cablevision-inspired setup of thousands of tiny antennas (what Aereo calls a private performance) can be legally distinguished from one big antenna (a public performance). Hey! Some substance! Excellent! How do you think that applies here? How do you think this case hinges on that and in what way might Aereo be violating that statute? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 22, 2014, 6:07pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/53 "2014-04-22T18:07:07Z")
You’re the one making broad, categorical statements about the law. I don’t know how the Supreme Court is going to rule but I don’t take the position that there is NO WAY the court can rule one way or the other. (I could make the plausible argument for either side. If there weren’t such plausible arguments, we wouldn’t be here at all.) That’s YOUR position, apparently, but I was giving you the benefit of the doubt and offering you a chance to back off from it literally. If you know anything about how our legal system works, it can’t be literally true and I was being generous and offering you a chance to clarify. And since I made no sweeping claim about what the court can or cannot do, I don’t feel obligated to defend a position I didn’t take. As for the rest of your questions, why shouldn’t I just follow your example and direct you to read someone else’s argument? ---
**Author:** ![Inner\_Stickler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inner_stickler/32/318_2.png) [@Inner\_Stickler](https://boards.straightdope.com/u/Inner_Stickler)\ **Post date:** [April 22, 2014, 6:11pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/54 "2014-04-22T18:11:23Z")
> [@Acsenray](#): > > I can assure you that every member of the Second Circuit bench can see ways in which they could be overturned. From a purely technical standpoint, how does this work? As a layman, I can’t help but think that if a judge can see an argument that rebuts his opinion, that must mean the opinion still needs work. If the second circuit bench can see how their opinion can be overturned, why would they issue it in the first place? ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [April 22, 2014, 6:12pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/55 "2014-04-22T18:12:02Z")
You two have come to my attention. Tone it down, will you? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [April 22, 2014, 6:16pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/56 "2014-04-22T18:16:09Z")
> [@Acsenray](#): > > You’re the one making broad, categorical statements about the law. I don’t know how the Supreme Court is going to rule but I don’t take the position that there is NO WAY the court can rule one way or the other. (I could make the plausible argument for either side. If there weren’t such plausible arguments, we wouldn’t be here at all.) That’s YOUR position, apparently, but I was giving you the benefit of the doubt and offering you a chance to back off from it literally. If you know anything about how our legal system works, it can’t be literally true and I was being generous and offering you a chance to clarify. I see now that in fact you do not understand the words that I wrote. To whatever extent my choice of verbiage contributed to your inability, I apologize. If you have nothing to add to the discussion, as you indicate, I’ll take leave of this aside and allow you to continue perusing (but not necessarily understanding) the posts in this thread without the distraction of our conversation. ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [April 22, 2014, 6:22pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/57 "2014-04-22T18:22:17Z")
Again, one more insulting word and the warnings will fly and I’ll close this thread, get me? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 22, 2014, 6:25pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/58 "2014-04-22T18:25:25Z")
> [@Inner\_Stickler](#): > > From a purely technical standpoint, how does this work? As a layman, I can’t help but think that if a judge can see an argument that rebuts his opinion, that must mean the opinion still needs work. If the second circuit bench can see how their opinion can be overturned, why would they issue it in the first place? The law is rarely so clear that a trained lawyer or experienced judge cannot appreciate the validity of opposing arguments. The legal system would grind to a halt if a judge could never issue a decision unless he or she thought that the opposing arguments were completely without merit. The law is complex and often ambiguous because life is complex and often ambiguous. But decisions still have to be made. ---
**Author:** ![Inner\_Stickler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inner_stickler/32/318_2.png) [@Inner\_Stickler](https://boards.straightdope.com/u/Inner_Stickler)\ **Post date:** [April 22, 2014, 6:33pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/59 "2014-04-22T18:33:57Z")
So it’s a just a matter of “I think X” and “I think Y” and whoever has the higher position wins? I guess I’m just confused because I would have thought that the judge would think their opinion satisfactorily rebuts the opposing arguments and that if they can see a way in which their opinion could be overturned, they would have seen to close the gap the first time around. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 22, 2014, 7:33pm UTC](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664/60 "2014-04-22T19:33:06Z")
Much of the law is interpreting words to figure out what someone else meant. You can think that your interpretation is correct while at the same time understanding why and how someone else could validly disagree with you. In fact, I would say you’re unsuited for the job if you couldn’t do that. As for “closing the gap,” I have no idea how one would go about doing that. [Previous page](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664.md?page=2) [Next page](https://boards.straightdope.com/t/keep-your-fingers-crossed-aereo-customers-todays-our-day-in-the-scotus/686664.md?page=4)