Keep your fingers crossed Aereo customers. Today's our day in the SCOTUS.

Great Debates
101

I would bet anything that if in 1957 or even 1967 you told the CEO or the President of a local broadcast television station that someone would come up with a technology to broadcast his signal all over the world, he would ask how much HE would have to pay that person to broadcast it.

And yes, I certainly agree with copyright, but not the excessive protection that the government gives broadcasters. If you broadcast your content in a way that everyone can receive it, then you shouldn’t be asking for government protection to stop everyone from receiving it.

If I airdrop a bunch of leaflets over the city, should the law protect my copyright if someone picks up a leaflet and gives it to a friend? If I don’t want it so freely disseminated, then I need to stop airdropping it and sell it in bookstores or something similar.

102

Because the spring has a limited capacity, and you’d be depriving other users of the water from the spring. You regulate the commons to avert tragedy-of-the-commons situations where it’s in everybody’s interest to overuse the commons.

That’s not a problem with receiving signals from the airwaves. If it was, broadcast TV in NYC would be of much worse quality than in, say, Topeka, Kansas.

The current system doesn’t contemplate anything. it isn’t a sentient entity. And the law being interpreted here is the Cablevision decision from the infancy of cable, when practically everyone who watched TV still watched it via broadcast, and only a relative handful watched via cable, and most of those cable systems were basically community antennas. So nobody was contemplating the current situation in deciding the case, though they surely anticipated that over time, more people would use cable than was the norm at the time.

103

I don’t see that this is remotely germane. If the Supreme Court rules on the basis of assumptions underlying business models, then they may as well admit they’re just acting as an appointed super-legislature, and just doing what they damn well please.

Mind you, that’s looking increasingly like the truth, but that’s another debate.

104

I think the analogy in this case would be someone air-dropping leaflets over a city, and then someone gathering up those leaflets to make a profit off of selling them. Although it isn’t a clear-cut answer, I would tend to think that the leaflet dropper should have an interest in getting some of the profits made by the reseller.

105

Wait, which Cablevision decision? Because the one in which Cartoon Networks sued Cablevision over the remote DVR was from way back in 2008. Hardly the “infancy of cable.” (Or am I being whooshed?)

106

Yes, the Cablevision decision is from 2008. The decisions from the infancy of cable might be Fortnightly (1968) and TelePrompTer (1974), which were overturned by Congress.

107

I believe the ‘decisions from the infancy of cable’ is referring to the law establishing the rights versus the requirements to distribute OTA broadcast channels via cable. I’m pulling this from college classes in 1997, so I can’t cite sources and I’m going to be a bit vague…

Cable started with the idea to deliver broadcast TV to people in valleys and such where they got no reception. You paid a cable provider to use their antenna up on the hill to pick up all the regular TV channels and deliver them in high quality reception to your building. As that became more popular, it caused some odd complex questions… if I’m sending you cable, and I don’t like the local broadcaster’s station (Maybe my ex-wife runs it?) maybe I just don’t carry that station, so everyone on cable gets some stations but not others… Regulations were eventually created as cable-only channels came into being to try and balance the system… Eventually there was a decision - I don’t recall if it was an actual court decision or an FCC/Congress regulation board decision or what - that established certain rules like a requirement that cable networks carry all the OTA channels - but OTA channels could in turn charge for that, but if they did charge, they surrendered the right to require the cable network to carry them.

108

You bust your ass making a leaflet that is compelling reading and airdrop it with an attached ad that you hope drives revenue to your business. You also provide copies to retailers who sell them to their customers, with your explicit approval.

Some asshole gathers up thousands of copies you airdropped, strips off the ad, and sells it at a discount, pretending that they aren’t “really” selling them, they are just providing “leaflet gathering and storage services”.

109

What do you mean “strips off the ad”? I don’t believe Aereo is altering the broadcasts it provides.

110

Here is a worthwhile summary of the some of the background associated with the distribution of TV to the American public.

It has grown to be exactly the tangled mess that one could have predicted for a free-enterprise free-for-all.

111

They provide customers with a 30 second “skip that annoying ad” button as part of their basic service package.

112

You can’t skip live streaming.

113

Is that what the button is actually called?

I assume you can use that to skip sections of programing, it does not just work with commercials.

114

But let’s say that I decide that I only airdrop over cities and not over more sparsely populated areas because it’s not worth the wasted leaflets and airplane fuel to drop them on rural areas (and I realize that this is the reverse of broadcast/cable, but I think the analogy still holds).

An enterprising soul decides to gather uncollected leaflets in the city and set up a service whereby he sets up a distribution network to sell them to rural homes at a profit.

Should I get a cut? Yes, it’s my content, but I didn’t do anything to distribute them to rural homes, and it would/should be presumed that I am benefiting from the third party service (my advertising is being distributed).

I understand the argument that I should have the absolute right to control the distribution of my content, but should that be something the government recognizes when, 1) I’m giving it out for free anyways, and 2) I’m benefiting from the third party service. Should the government set up a system where I can demand more, more, more?

115

True, let’s say that the reseller makes the inclusion of the ad up to the discretion of his customer.

It exists to skip commercials, or at least the development of the technology was undertaken in order to make skipping commercials more convenient for customers.

116

Yes?

I mean, look. If I have the right to control distribution of my content… I have the right to control distribution of my content. It’s MY right and you don’t just get to take it away because I’m using that right in a well defined and structured manner that doesn’t involve a monetary transfer between myself and the viewer. It also doesn’t matter that YOU think I’m benefiting, it’s not your right, it’s mine. Many of these networks have online streaming presences that they would probably like to develop themselves. Not to say that they aren’t screwing the pooch with those presences, but it is their pooch and they may screw it however they like.

Let’s just say that this is 100% legal, what is Aereo’s next move? If it is legal to provide Antenna and DVR service, why not provide additional services, like Ad Skipping? Does providing access to a freely available signal suddenly become illegal if you take the time to mark the beginning and end of Ad Space, and give the customer the option to skip it automatically? They would clearly not be required to send the signal untouched, since they already offer a 30 second skip option, what’s the harm in letting Aereo do the work to know when to jump forward? Maybe they could add in an advertising overlay, does providing access to content preclude you from providing some of your own content?

117

It doesn’t have to be a slippery slope. The court could decide that a rebroadcast could not be altered in any way to be considered legal.

118

I personally believe in the first sale doctrine. I don’t think that, once you give something away for free, to people who have not signed any sort of license or contract, that you have any right whatsoever to control it. You retain the copyright, sure, so it can’t be altered, but you don’t retain the right to prevent it being given to someone else.

I don’t think it’s a silly distinction at all about there being multiple antennas. Each antenna gets one copy of the broadcast and thus should be able to give that copy.

The only reason I don’t care about this case is that all the broadcast shows worth watching are available online anyways. I see no reason to ever use Aereo’s service.

119

There is no first sale of electromagnetic signals. First sale applies to goods, not services.

120

Aereo includes a remote DVR system. As part of their legality pushing process, they record a separate copy of each program for each user that wants a copy. E.g., 1000 people want to record The Daily Show, they record 1000 copies of The Daily Show.

This is the remote DVR strategy that CableVision (and others) deployed that was the point of that lawsuit. Which CableVision won.

Like I said, if it wasn’t for their DVR feature, Aereo has a logical, if tenuous, argument. Adding the remote DVR feature complicates things just enough to perhaps overextend their argument.

Cite the CableVision decision to have remote DVR feature? Okay, they’re a cable company, pay up.

Hey, don’t the OTA stations want more people watching them and their ads? Um, but they provide a feature that allows people to skip ads.

I really don’t get the “Artists should be compensated.” argument. Should people who sell regular TV antennas have to pay artists? Should TV set makers? DVR makers? Etc. Just because someone is in the business of profiting off an artist’s work, doesn’t mean they are liable for payment to the artist.

Note that a lot of OTA stuff shown on cable does not involve the cable company paying anybody a dime. That’s been happening since the dawn of CATV. Have artists been cheated all these years?

Also, the broadcasters themselves don’t pay for some of their programming! Network affiliates actually get paid by the network to carry their programs, plus they get ad slots. The artists don’t get squat from the stations for those programs. Also, artists don’t get paid for older programs and movies. The cast of Gilligan’s Island stopped getting residuals after just a few years.

Artist compensation will not be a factor at all in this case. Not at all.

Some businesses have to pay up. Some don’t. SCOTUS has to figure out where the line is in an interesting case.