Does it matter if the originator of the work is giving it out for free to anyone who will take it?
But it’s free only to those who live in their market area and acquire the signals that are sent to their location.
Hard to draw a parallel but let me try… suppose you’re a writer who sells a copy of a book to a library. So it’s free to read if someone checks it out. But suppose someone sets up a camera in a library and sends images of that book to anyone who wants to see it?
But what if they do live in the market but they can’t get a signal because they live in an urbanized area where they have buildings and all sorts of things blocking a signal they’re supposed to be able to get for free?
If I try to log onto my Aereo account when I’m out of town, it won’t let me do it, I get a message telling me I can’t view anything because I’m not in the area. I can still set up recordings and what not, but I can’t watch any recorded shows or live streaming TV.
Boo hoo. I can’t, for the life of me, feel sorry for monopolistic companies whose outdated, government-sanctioned bundling model forces consumers to pay for services and channels they do not need or want. The model is broken and outdated. The cable companies should allow consumers to choose what channels they want. This is what consumers will line up down the street to pay for but the companies won’t offer it. I don’t feel sorry when an innovative company finds a way to circumvent the bullshit and offer what consumers want. The problem is that once you beat down companies like that, all you do is run them underground (e.g. See Popcorn Time).
- Honesty
But that’s not the case. If I were to set up a theater and charge admission for people to watch OTA baseball games, the fact that the signal is broadcast does not give me unlimited right to use that signal for anything I want. So it just isn’t true that OTA signals are “free to anyone who will take it.”
I should add that my mind is still open on this issue – I’m trying to find good summaries of the prior court cases that explain why Aereo has won so far, but not having a whole lot of luck.
Yeah, but our system of government depends on elected representatives to make those decisions. Courts should not just be able to declare by fiat, “I’m Justice [Whoever], and as long as I can convince four other justices that Congress is a bunch of crooks for not changing the laws to allow Napster (for example) to operate how they want, then we’re going to overrule every law we don’t like that was written by those poopyhead luddites that are in charge of writing laws.”
Do you really want our courts to be able to decide with no legal foundation which technologies are cool and bend laws to accommodate whatever gizmo is the latest and greatest thing, with no regard to laws passed by Congress?
Suppose the library sets up a camera and sends images to one person at a time who wants to read the book? At any time, only one person may access the camera. How would this be a problem?
And if there were 10,000 cameras pointed at 10,000 books? And by “camera” we mean highly sophisticated scanning device with optical character recognition?
The difference between an author selling 10 million copies of a book to individual buyers who might spend 99% of their time NOT reading said book, and 10,000 copies that could be seamlessly time-shared so that the use of each copy is 100% optimized in order to require the fewest physical copies is only a matter of technology, but that has a huge impact on the financial incentive of the author to produce the work.
I’m with others here – I’m not sure what the right answer is, but I don’t think courts should be in the business of deciding which old technologies these new technologies are most similar to. I think lawmakers need to address new technologies as separate entities based on what the desired outcome is. In the above example, it’s great for consumers to be able to read these books for less money, but they may get fewer books if authors choose to stop writing them. I’d like to err on the side of consumer freedom, but in this Aereo case, I’m not sure if this antenna leasing is a good step or a bad one.
Ideally, whether that’s a problem should probably be negotiated between the two parties, as opposed to the library imposing a solution on the author without his/her consent.
ETA: But I also think that the library analogy is not that great – I think there’s a big difference between the responsibilities of a library and the general interest of how the public airwaves are used and accessed. That may be a point in Aereo’s favor (notwithstanding the points that are not in Aereo’s favor).
This is not what is happening and it is not how courts operate. Congress had already enacted a statute and the court is interpreting it. If the court gets the interpretation wrong, Congress has the opportunity to fix it. That’s the system.
This is exactly what happened with the Fortnightly and TelePrompTer cases. The courts looked at the copyright statute and said "well, it doesn’t look like there’s anything wrong with CATV or cable taking a free over-the-air signal and re-selling it to subscribers.
Congress turned around and when it enacted the Copyright Act of 1976 said “no, you’re wrong about that. It’s not okay to take a free over-the-air signal and re-sell it to wireline subscribers without the authorization if the broadcasters.” That’s the statute that’s now being interpreted.
Take a good look at the language I quoted from Section 101 of the Copyright Act in Post 50. Given that definition does what Aereo is doing constitute a public performance?
You’re ignoring what Honesty said which I was responding directly to. To paraphrase, Honesty seems to argue that anything that sticks it to cable companies and the networks is good, seemingly without regard to how that conclusion is arrived at.
Since that was Honesty’s point in a nutshell, I’m sure you disagree with it. Right?
ETA: I don’t have any substantive disagreement on how you characterized how courts and legislatures ought to operate.
I’m no fan of cable companies but sticking it to them shouldn’t be part of the court’s consideration no matter how you interpret the statute.
Then I think we’re in violent agreement.
If Aereo is stealing from anyone, is it the public, not the broadcasters or artists, because they are taking something that is for free viewing and tacking on a surcharge to that to line their pockets.
But they do. The TV networks are the ones who negotiated the pay, and that, in theory, is dependent on how many people watch the show, so Aereo has more people watching the broadcast, and hopefully has more people buying double strength toilet paper that is advertized. So the networks can charge the advertizes more (as Aereo can’t place their own commercials in as cable TV can), and has more money to pay the artists.
In many ways Aereo does bring the original intent of OTA broadcasting back to it’s original roots. Before it was a technological impossibility when cable TV first came about, so that was one antenna with the signal split multiple times serving many customers, then we had to define what is a public and private viewing, and created a whole mess with retransmission fees. Aereo may have been the technology if available back then where we could have not had us ever have to consider retransmission fees.
This is the part I disagree with (even though it is what the law says). These stations choose to broadcast their signal over the air without encryption for the express purpose of individuals receiving their broadcast. Hell, they even advertise on the station for MORE people to watch (“Tell your friends to watch WQQD news at 11pm!!!”).
Even in the 1970s it was realized that this method of transmission was outdated because more and more people were receiving the signal from third party providers. Instead of accepting the gift horse, the broadcasters persuaded Congress to give them even more money in the form of rebroadcast fees. These stations could have encrypted their signal and provided it only to the cable companies, but they wanted over the air reception AND cable reception, and also wanted it codified in the law that they got fees for the latter.
Now the internet comes along and can literally send Channel 4, WQQD, located in Bumblebee, WV’s signals to everyone in the entire world! Imagine that. As a local business, my 30 second spot could be seen by people in China. That is an absolutely astounding development that these companies (and their advertising customers) should be embracing instead of trying to squeeze every nickel out of it with the help of the government.
Likewise with your baseball game in a theater. If I’m WQQD broadcasting the baseball game with my commercials being played, I should be paying YOU to set up a theater full of people to watch it.
So, I think we are in violent agreement. The law as written doesn’t allow what Aereo is doing, but Congress should get off of its ass and quit pandering to broadcasters and allow this sort of thing.
Disagree. Yes the signal is free for me to receive, but I don’t have the technology to receive it either: 1) at all, or 2) in the digital format with DVR and playback capabilities that Aereo offers. I am paying for a service I couldn’t otherwise receive.
You might as well say the water company is ripping me off because I can always go bathe and/or drink in a stream or a lake. The service is bringing it to my house in a suitable form.
That’s how the system is supposed to be at least. It’s not supposed to be the courts’ job to protect the profits of content providers. If Aereo is following the forty year old law then the courts should say so and leave it to Congress to worry about the effects. I don’t know who is right about the old law but nontheless I will confidently predict that Scalia, at least, will vote against Aereo and in favor of the interests of established corporations. If I am wrong then Bricker will have the actual Gotcha! moment he pretended to have in the “Today the Fourth Amendment is One Step Closer to the Grave” thread. (But I won’t have a Gotcha! moment even if I’m right because for all I know, Aereo really isn’t following the law.)
But you’re leaving a few key words out – “for the express purpose of individuals receiving their broadcast for their own use.” Aereo is receiving the signals and then charging people to access the broadcasts: whether that is a public or private performance can be debated, but let’s stop saying that the signals are free for everyone to use for any purpose whatsoever.
If you ran a pharmacy/lumberstore/whatever in Bumblebee, WV, why would you care about audiences in China? You think Lao Li is going to order a bottle of aspirin from you because he was watching Big Bang Theory in syndication at 2am local? Seriously, I can’t imagine why local businesses would see a benefit if their local TV ads are streamed to far-away places… as if any viewer isn’t going to skip through the ads anyway.
Yes. I agree. This is the way it is.
The original purpose, however, was for them to be freely disseminated, hence the reason for powerful transmitters without encryption. The networks simply got greedy and wanted more.
I’m not sure how old you are, but I grew up when TBS and WGN were broadcast on cable. For some reason (probably broadcaster protection) the powers that be put an end to “superstation” broadcasts but allowed the existing ones to continue.
Not only are TBS and WGN nationwide names, but so are their advertisers. The Chicago Cubs and Atlanta Braves have a nationwide fan base because of people like me watching them from thousands of miles away. Remember “588-2300, Empiiiiire” A Chicago carpet store is now a national chain because of it. Would that work for 99% of businesses? No.
But there is no policy reason to artificially limit that exposure for the sole purpose of “protecting” content that is freely distributed over the airwaves that any idiot with a set of rabbit ears can pick up, except to protect the monopolistic practices of the broadcast industry that was established in the 1950s.
I disagree. I have no doubt whatsoever that no network, ever, wanted their copyrighted product to be “freely disseminated” by anyone who could get hold of a copy and transmit a signal. No TV network, no radio station, none.
We have copyright for a reason. Even though I despise the way copyright has turned into perpetual protection, copyright has a valid purpose. The purpose is to ensure content makers have a monopoly on the distribution of their content.
Every business choice Aereo has made is intended to let them distribute content without the permission of the creator, but have enough technical cover to allow them to make a claim that it is legal.
The reality is that if the owner of the content distributes it in a way that doesn’t allow you to get it, you don’t get it. Because they have the “exclusive right” to the product, you don’t.