First of all, regarding current US law on cable TV rebroadcast. The rule is either: The TV station charges a fee for rebroadcast, but then the cable company can opt out of carrying that channel or the TV station allows the cable company to rebroadcast for free. In practice, this means the cable companies almost always do not pay a cent. Way back when, it was always free to rebroadcast.
Aereo is doing a slippery slope argument. Let’s ignore the DVR aspect for now. Let’s see how far you go in agreeing with what’s legal.
You don’t want to buy an antenna. So you lease one. A company comes out, put’s one on your roof. You pay a monthly fee.
It turns out, your house is in a lousy location, so the antenna company installs the antenna somewhere else, on top of a hill or some such. Then your signal is fed to you. (Twin lead, RF coax, Ethernet, who cares?)
It turns out, that it makes sense for the antenna company to co-locate all their customers’ antennas in one place. Regular antennas take up a lot of room so they use really small ones.
I don’t see any real problems going one step to the next. But that’s the thing with slippery slope arguments.
Now, let’s throw DVR recording into the mix. At each stage, consider adding a DVR at at one of two locations: your house or near the antenna. At your house, most people don’t see a problem. But a remote DVR gets some people worried.
Should they? It’s already been ruled in the CableVision case that this is okay.
However, this could be the Achilles Heel of Aereo’s case. Just the kind of fine point this particular Supreme Court likes to exploit to help out the big guys.
CableVision is subject to paying fees to broadcasters. (It might not actually be paying fees, but it is subject to fees. See above.) If Aereo says: Hey, we’re just like CableVision, then the broadcasters might retort: Okay, pay the fee or stop carrying us!
It seems like the slippery slope argument could go both ways.
You can’t get a good signal signal at your house, so the antenna company puts one on a hill for you.
It turns out, you don’t really like the newscasters your local station has, so you have the antenna company hook you up to an antenna a few hills over, so you can get the neighboring city’s channels instead of your local ones.
But you follow a few sports teams from around the country, and their games aren’t carried on the neighboring city’s channels. So the antenna company hooks you up to antennas placed around the country so you can get all the channels. This is starting to sound a lot like a sports package from Comcast or DirecTV (I realize they don’t really carry local affiliates, but still)…
I haven’t fully formed an opinion on this matter (and I’m not a lawyer, so I won’t even try to form an opinion about the legality). But I feel like the tipping point is when you start receiving channels that you could never even theoretically receive with an antenna. No matter how tall of an antenna I put up, I’m not going to get San Francisco TV channels in LA. So a service that fed me those would be crossing a line, I think. But if Aereo is limiting its service to people who could get the channels over the air with an antenna anyway, I’m not so sure. Are they really just providing “a better antenna”?
While I would love to win based on the merits of this case alone, I do take a guilty pleasure in the fact that Aereo (unwittingly) basically has a gun to the temple of the 10 Billion plus cloud industry telling the Justices: “Let us go or the Cloud industry gets it!”
In reading more, I greatly underestimated how often cable companies have been stuck paying rebroadcast fees for OTA stations. I thought it was just a few stations in major markets that were also owned by companies that own top cable channels and could leverage that. But apparently it now accounts for a significant fraction of broadcasters’ income.
That weakens some of the arguments I made.
Also, I had been thinking that (except for the DVR issue again), that broadcasters should actually be fans of this. After all, this means fewer people with cable and therefore more people watching OTA channels instead of cable channels. In short, more eyeballs for them and their advertisers. But if the broadcasters are getting a lot of rebroadcast fees, then that changes the equations.
OTOH, there are in many markets with 1 or 2 religious stations that Aero could benefit. They don’t have the leverage to demand fees. Advertising itself isn’t the issue (directly). The producers of the shows pay the stations to carry their content and get their money back from donations from viewers. Again, more eyeballs, more viewers. Also, they don’t care about DVR ad-skipping and ratings issues. They should have filed amicus briefs (like Fred Rogers in the Betamax case), which would have made the broadcaster side look less unified.
I don’t get this argument. Since we have a right to receive whatever signals are floating on the airwaves, why shouldn’t I be able to lease a piece of land in each of several distant cities to set up antennas to have their broadcasting piped to me? And if I have the right to do it for myself, why don’t I have the right to pay someone to do it for me?
As long as a specific antenna or set of antennas is mine and nobody else’s, and I only get to use my specific antennas, it would seem like my antenna isn’t a ‘community antenna’ as in CATV from the earliest days of cable, but a private antenna that is within the bounds of the Cablevision decision.
(FWIW, I don’t give a damn about Aereo specifically. It just seems clear that broadcast television needs to be brought to an end because it’s gone from how 99% of people get their TV to how 10% of people get their TV, yet it still has this massive chunk of prime spectrum befitting its earlier status, spectrum that could be used for lots of other things. You could put commercial radio on it, and have so many more stations than now that a thousand flowers could bloom. You could have a nice big chunk of spectrum for municipal wi-fi. Etcetera. Kill broadcast TV, come up with some system by which ‘broadcasters’ would pay cable companies a fee to be ‘free TV’ only over the cable, and you’re done. Maybe you still need broadcast TV in remote rural areas that don’t have full cable penetration, but that would be it. If this decision can hasten that day, then I’m all for it.)
I’ll admit that I’m not up on all of the new technology, but I was under the impression that the reason these local station (as opposed to cable stations like Comedy Central, ESPN, etc.) broadcast their signal over the air and unencrypted is because they want as many people as possible to pick it up. Much the same reasons that local radio stations broadcast.
So if you have a company that is gathering and redirecting your signal to even more people, wouldn’t the broadcasters like that sort of thing? I mean, they run ads on the show to make money, and now that more people are watching, they can charge more for the ads.
The point is not whether they choose to charge a license fee or give it away for more viewers. The question is whether it should be their choice whether to do one or the other.
They might not insist on a licensing fee, but they might try to bargain for something else.
Though, as ftg points out, if rebroadcast fees are a large part of the broadcast networks income, then increased ad revenue may not balance out their losses.
Businesses (and business models) are built upon assumptions and beliefs about how people will use the products and services. One of a broadcasters’ assumptions is that their signal is available to people in a finite geographical area. This likely has bearing on things such as advertising rates, sports blackout areas, pay scales for on-air talent, local laws that must be complied with, etc. While it is theoretically possible, it’s infeasible for a significant number of people to lease land in far away places, put antennas on the land, and then run wires back to their houses to get the signal. One person doing something outlandish is easy to overlook; a company doing it on a large scale is another thing entirely.
I’m not convinced that having people outside of the expected area see the signal materially harms a broadcaster (and, if it allows them to raise advertising rates, it may help them). But it seems clear to me that they designed their business based on the expectation of a certain size of audience in a certain area, and they should have a say in whether a third-party can use their product to systematically invalidate that expectation (and profit by doing so).
After a cursory reading of the thread, I tend to agree. I mean, I agree that under current law Aereo is a “cable company” and should have to pay the fee. That being said, the law is terribly outdated and needs a rewrite to account for the advent of the internet. There is no need for a separate cable delivery system like DirecTV or Comcast. I should be able to buy television channels a la carte on my computer.
It seems silly to have a law that basically says that I can hand out leaflets to you for free, you can take them for free and read them for free, but if you hand that leaflet to another person then you must pay me for the privilege of handing it to that third person, even though I would have gladly handed it to them for free.
I think the counter to this would be one of scale. For example, I can get a drink of water from the mountain spring and that’s completely legal, right? So why can’t I take two drinks? Or 10? Or a gallon?.. <5 steps down the slippery slope>… Or set up a spring water bottling plant next to the spring and market it across the country? For free?
The current system contemplates that a handful of individuals will receive the signal in their homes free of charge, with the majority of subscribers paying by way of a rebroadcast fee because they subscribe to cable.
It does not contemplate another private organization capturing that stream through seeming loopholes in the law and redistributing it to the subscribers, at a profit to the private organization, without paying the fee.
It’s hard to see how this goes Aereo’s way. Seems to me that the distinction between having one antenna or a thousand in the same physical location is pretty artificial and exists only to try to exploit a legal loophole. You can get over the air signals for free by having your own antenna at your own home. When many people share one antenna and pay a third party for the signal, that’s cable television.
More important than the law is the political inclinations of the justices. The Roberts Court has more sympathy with those parties with deeper pockets, another sign that Aereo is going down.
That seems to be a pedantic distinction that wouldn’t convince most people of a meaningful difference. The end result in the same; why should the particular technology used to achieve the result matter?
I truly don’t understand the nuances of the law in this area, but it seems to me that as a general principle, if someone uses the work of others to make a profit for themselves, in most cases the originator of the work should share in the profit.
Seems to me that the issue of leasing an antenna (who the hell leases an OTA antenna outside of this service, anyway?) isn’t the real issue here. Sounds to me like Aereo’s secret sauce isn’t really thousands of antennas, it is taking the OTA signals and distributing them by Internet to many thousands of people. If they are distributing signals in a way that broadcasters do not/cannot, seems to me that Aereo owes the broadcasters something for distributing the content in a new medium.