back to article Aereo has to pay TV show creators? Yes. This isn't rocket science

As widely expected, the US Supreme Court has ruled that TV show creators should be paid by video streaming biz Aereo for the distribution of their work. The TV rebroadcaster, backed by media mogul Barry Diller, was found to have exploited a loophole in American law's definition of "performance" by six of nine justices in an …


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  1. Destroy All Monsters Silver badge


    Well, I guess everything about the payment of potential remuneration for a non-occurring public performance for an already-paid-for datastream has already been said in that other thread.

    You can't rent long cables. Period.

  2. Justin Pasher

    Flip the coin

    "Aereo even found three Supreme Court Justices who agreed with it. Six Justices, however, didn't, sticking broadly to the common sense and widely accepted principles of property and compensation."

    Putting the "spirit of the law" aside for a moment, let's look at this scenario.

    (I am assuming the one-to-one antennae aspect of Aereo is true, as they say)

    An end user goes out and buys an antennae to receive over the air broadcasts. He hooks up said antennae to a capture card on the computer and uses some form of PVR software. The net result? The end user is getting the same content as the Aereo service (at least at the location of antennae installation) for a one time hardware payment. No money has gone to the broadcasters, following the "common sense and widely accepted principles of property and compensation". Yet this scenario is perfectly legal.

    Let's take the DVR aspect out of it for the Aereo service. Now, a user only has access to a live stream of whatever is being broadcast at the time. Take that technology and put it in a USB dongle, and now it's portable. Assuming the verdict would be the same if Aereo did not provide DVR service (I wonder if it would have been), the former method is illegal but the latter is legal.

    Since (I assume) the Aereo service could be accessed from any Internet just by logging in to a user's account, it's not quite as straight forward, but the principle is still relevant.

    1. Ian Michael Gumby

      @Justin... Re: Flip the coin

      In some of the articles, the authors say that the courts saw through the sham.

      That is to say that there are 'hundreds' of antennas and that there is one per 'customer'?

      Ok and that suppose they all wanted to 'record' the US vs Germany in World Cup action.

      How many copies does Aereo actually make and retain?

      If you believe 1 per antenna... I've got some swampland in Florida you might be interested in.

      The difference between you recording your own shows using hardware so that you can watch it anytime and virtually anywhere... (assuming you have the correct software) is that you're not providing the recording as a service and are charging for that service. Were you to do that, then you'd be on the hook like Aereo.

      Note that if you look at what you want to do with 'over the air'... google hulu.

      1. anatak

        Re: @Justin... Flip the coin

        But say that you use a cloud service to store the recordings and you pay for the cloud service. Would that be legal ?

        Then of course you have to setup a business where 'everybody' uploads the program, everybody has 1 copy of that program on a cloud server, and everybody streams that program individually.

        I can see the storage and bandwidth flogging industry being very happy about this.

        1. Paul Hovnanian Silver badge

          Re: @Justin... Flip the coin

          I have a cardboard box full of VHS tapes, kept in a rented storage locker. Does the owner of that rental facility owe some studio for that storage service?

          1. Ian Michael Gumby

            @Paul, Re: @Justin... Flip the coin

            The issue isn't the question of storage of your individual copies.

            The issue is if you store your copies on the cloud, and then make them available where people pay a fee to view your copies. (Meaning that they don't own their own copies.)

            That would be illegal.

            Here's a grey area... suppose you offer a service that allows people to upload their videos.

            Now suppose you take the checksum of the videos and decide that if they match an already stored video, that you instead of storing an additional copy, you just store a link to the existing copy. If someone removes a video, you remove the link and when a video no longer has any links, you remove the file.

            Would this be illegal? I honestly don't know, and I think that it would be legal, as long as the video content itself was legal. But IANAL and that too would have to go through the legal process up to SCOTUS.

        2. Ian Michael Gumby

          @Anatak Re: @Justin... Flip the coin

          Suppose I want to take my over-the-air or any other broadcast that I receive at home and use my computer as a DVR. Then suppose I want to store that copy 'in the cloud'... I then want to play it back on my TV or PC, I should be able to do so. However, the moment you share it... you're going to be afoul of the law.

          Yes, if 100's of people does this, then there are 100's copies and each of you are paying for the storage and costs of streaming. But it would be legal.

  3. NinjasFTW

    average user suffers again

    yes, how dare someone who is buried in a concrete jungle and can't receive standard free to air broadcasts throw a few pennies to a company that is prepared to pick up the signal for them.

    The user still sees all the adds in the original transmission which is not manipulated and which is all the compensation the broadcaster would receive from people out in the suburbs.

    Yes technically it is retransmission but its just the cartels being bastards, The broadcaster just saw

    an opportunity to double dip and went for it.

    and lol at the portrayal of media companies as the plucky underdog!

    1. Mage Silver badge

      Re: average user suffers again

      Nah, it's Cable TV. Cable co have to pay.

  4. MooJohn

    Aereo is NOT broadcasting

    Connecting one user to one physical antenna is NOT broadcasting, which by its very definition means one source to many viewers. It isn't "public performance." Nothing is shared.

    The argument always goes back to "But they get money to provide our content to others." No they don't. Aereo is paid for its link to the antennas, not for the content received by them.

    Instead of legitimate viewers who still get the advertising along with the content, television stations will continue to lose those eyes to downloads that are stripped of advertising and packaged in an easy-to-download format. Then they'll blame "those darn pirates" instead of themselves for failing to provide what the market was longing for.

    1. DZ-Jay

      Re: Aereo is NOT broadcasting

      The definition of re-broadcasting or public performance does not stipulate the size of the audience. Do you mean to say that if I am the only person sitting and watching a movie in a theater, the owner no longer has to pay licensing fees? That is ridiculous.

      The point of the ruling is that Aero are renting access to a mechanism that allows content re-broadcasting. Regardless of whether it is to a single person or many, the fact that *they* are facilitating the broadcast (and making money out of it), infringes on content owners property rights.

      To the second point that everybody seems to make, it is prohibited by Copyright law to make copies or re-distribute protected content. Individuals are granted an exception for personal use under the fair use clause.

      However, this exception is acknowledged specifically because personal use has a self-limiting effect on any such infringement. The moment that this use is mechanised by clever technology to overcome such limiting factors--and especially when its sole purpose is to make money off it--it is no longer fair use. It is as simple as that.

      You want to lay a long cable from your house to an external antenna outside the city, fine: you deal with the costs and risks, and it is your personal problem.

      You end up with a nifty setup and want to start renting it out to others? That's no longer the same, and you will be found infringing.

      As such, Aero was exploiting a loophole with clever technology, and was caught.


      1. Destroy All Monsters Silver badge

        Re: Aereo is NOT broadcasting

        The definition of re-broadcasting or public performance does not stipulate the size of the audience

        Amazingly, you just found out that your rebroadcasting to yourself! You know how to write a cheque...

        To the second point that everybody seems to make, it is prohibited by Copyright law to make copies or re-distribute protected content.

        Amazingly you are suddenly required to show up at Amazon's warehouses because they can't send protected content via postal mail: that would be re-distribution. Very much prohibited. I won't even say anything about ISPs and IP backbone providers.

        You end up with a nifty setup and want to start renting it out to others? That's no longer the same, and you will be found infringing.

        Amazingly, this is suddenly no longer related to copyright law but clearly a prior restraint of trade: You can't rent that cable!

        The moment that this use is mechanised by clever technology to overcome such limiting factors--and especially when its sole purpose is to make money off it--it is no longer fair use. It is as simple as that.

        "Fair use" does not even apply. And suddenly "making money" (as in, shipping books through the worl without paying the holder of the book's copyright) is despicable? Pull another one.

      2. JEDIDIAH

        Re: Aereo is NOT broadcasting

        > The definition of re-broadcasting or public performance does not stipulate the size of the audience.

        Yes it does. There are old DVD rental cases that bear this out.

        From a purely factual point of view, there must be a distinction made here.

        Calling it an illegal copy would have been fine. Calling it a "public performance" is just Orwellian nonsense.

      3. Neil Stansbury

        Re: Aereo is NOT re-broadcasting

        This is just nonsense...

        If I place an antenna on my neighbours roof, I am not re-broadcasting.

        If I hire an antenna and place it on my neighbours roof I am not re-broadcasting.

        If my neighbour charges me to access his roof neither he nor I are re-broadcasting.

        If I connect a splitter to the antenna and connect two coax cables neither of us is re-broadcasting.

        If I send the signal from the antenna over RJ45 instead of coax I am not re-broadcasting.

        If I or my neighbour replace the RJ45 or coax cable with a Wifi connection I am still not re-broadcasting.

        In every case all I am doing is connecting my antenna with my TV, the actual broadcast data stream is never modified, and the signal from the antenna is never "broadcast".

        You cannot claim that changing the means of physical connection between my antenna and my TV constitutes re-broadcasting, this is just nonsense.

        Following this line of logic means VHS cassette manufacturers should be charged with copyright infringement too, for facilitating a "re-broadcasting" service.

        Aside from all that, as the stream is never modified there is no loss - financial or otherwise to the broadcasters.

        1. Andrew Orlowski (Written by Reg staff)

          Re: Re: Aereo is NOT re-broadcasting

          Neil, You're looking at "how it does it" and hoping this defines "what it does": the process defines the purpose.

          The Court concluded the opposite: that Aereo is an ersatz cable operation, and should have the privileges and responsibilities of being a cable operation. That's all.

        2. Gary Bickford

          Re: Aereo is NOT re-broadcasting

          "If I connect a splitter to the antenna and connect two coax cables neither of us is re-broadcasting."

          Sorry, this is where your thought process fails. This was exactly what the very first CATV did, and what the long court history is based on. John Walson sold TVs in 1948, and the signal in his Pennsylvania valley were too weak. So he stuck an antenna on top of a ridge, and pretty soon had the first primitive cable system running. Since this and most early uses of cable were providing additional local viewers to stations, there wasn't a lot of argument. Later, when a San Diego cable company started showing video from Los Angeles stations, the Los Angeles stations complained - obviously their local advertisers were not going to benefit from viewers 100+ miles away. The upshot of various legal fights was that the FCC got control of cable. See

          IIRC, if the cable doesn't cross anyone else's property and doesn't cross any right of way, you can construct your own cable system and be free of FCC regulation but may still be in violation of copyright etc. IANAL, etc.

  5. John Robson Silver badge

    Even without the 1 antenna -> 1 Subscriber model...

    How is this different to people putting their own aerial up.

    Can I use my DVR at home? Yes (ignore the fact that I don't have a TV license for the moment)

    Can I use a PC as a DVR at home? Yes

    Can I then watch something off that PC/DVR at home? Yes

    Can I stream something from my PC/DVR to a smart TV at home? Yes

    Can I take that PC/DVR to my parents house and watch things I recorded earlier?

    - I assume this is equivalent (legally) to carrying a VHS cassette...

    Interestingly: isn't clear on the issue. Time shifting is legal, but space shifting may or may not be.

    1. Steve Todd

      Re: Even without the 1 antenna -> 1 Subscriber model...

      The difference is that it's all done using your own kit without paying a 3rd party rental and without streaming over a public Internet connection.

      Where Aereo messed up was the idea that they could profit from offering a service that Congress had already decided should be payed for (they had legislated retransmission fees). They tried for a technical loophole in the law as it stood and were always on shaky ground.

      1. User McUser

        Re: Even without the 1 antenna -> 1 Subscriber model...

        The difference is that it's all done using your own kit without paying a 3rd party rental and without streaming over a public Internet connection.

        So if I rented rack space in an Aereo facility, used a DVR I bought outright (from Aereo), and used a VPN to watch my shows, that would be OK?

        1. Steve Todd

          Re: Even without the 1 antenna -> 1 Subscriber model...

          Stop me if I'm wrong, but that still involves rental. There is a special exemption in US copyright law for personal home recordings. The minute that a company starts involving themselves in charging for the ongoing provision of recording as a service then they're outside of that exemption.

          1. User McUser

            Re: Even without the 1 antenna -> 1 Subscriber model...

            So if you rent your house or apartment you can't have a DVR?

            TiVo provides TV listings to their DVR users in exchange for a monthly fee. Is that "charging for the ongoing provision of recording as a service"? (The TiVo DVR is completely useless without the TiVo provided listings.)

            1. Steve Todd

              Re: Even without the 1 antenna -> 1 Subscriber model...

              You live in the Aereo warehouse? It's not a domestic location. The exemption is for personal home use. Under no stretch of the imagination could the Aereo warehouse be considered to be a personal home location. Renting a house or flat on the other hand doesn't change it's status as a domicile.

              TiVo doesn't rent you the machine or location. They also don't insist that you accept their TV guide in order to get the service (though it becomes somewhat less useful). The only part of the equation that they are providing externally are TV listings (which I believe they pay the TV companies for in order to source them), everything else is within the user's personal domestic space and therefore covered by the exemption.

  6. JonnyQuiz

    Good. Now it's time to end retransmission fees.

    While I generally agree that Silicon Valley has for too long played fast and loose with other people's intellectual property (how much of Myspace's value when it was sold to Murdoch was down to innovation and how much was down to other people's copyrighted music?) I'm not sure that this is the case here.

    The argument is that the content producers are not being compensated. Surely the deal that the broadcasters made with the government and citizens of the US was that the content is to be provided free to consumers, with the content being paid for by advertising. If programmes being viewed on Aereo don't count towards viewing figures then start counting them.

    The argument that the cable companies have to pay retransmission fees to the content providers, and so should Aereo, completely misses the point. When the justices introduced the retransmission fee legislation who did they think was going to be paying the retransmission fees? The cable companies? Yes, but the cost is then passed on to the cable companies's customers, the same US consumers that the broadcasters had agreed to supply their advertising supported content to for free.

    In the UK BSkyB (another Murdoch entity) have a business where consumers pay BSkyB for the convenience and User Experience that BSkyB delivers, for access to BBC, ITV, Channel 4 and Channel 5 television content. The BBC content is paid for by the license fee, the other channels being advertising supported. BSkyB is being paid by the users for the user experience, not the content.

    Not only does BSkyB not pay the broadcasters for their content, until February 2014 it actually charged the broadcasters millions of pounds to retransmit content that BSkyB did not own.

    The broadcasters should be free to decide whether third parties can retransmit their content (and hence increase the number of viewers who see the advertising to increase their bottom line), but not to charge for it.

    I hope that the broadcasters' victory is a pyrrhic one, and that the issue of retransmission fees is revisited. It ain't free if you've had to pay for it.

    1. Christian Berger

      Re: Good. Now it's time to end retransmission fees.

      Actually with US cable companies there is an interesting aspect. Apparently they pay fees to the broadcaster and in return get the right to swap some of the commercials for their own. So in the US you get different commercials depending on how you get your signal.

      I personally believe that we must create laws which enable us to get any broadcast we want. The current situation is just ridiculous. I mean we are talking about an united Europe and the progress we make towards it. Yet in the 1990s I could watch a fair share of UK television with exactly the same equipment I got German television. An Europe united in television. You pressed 1 and got Sat1, you pressed 21 and you got The Children's Channel. Today however channels are allowed to use encryption and spot beams to lock out the rest of Europe.

    2. An0n C0w4rd

      Re: Good. Now it's time to end retransmission fees.

      I can't confirm if this is still the case, but cable companies in the USA used to have to carry the free-to-air broadcasts in the clear on the cable plant. No encryption, no compression, so that unmodified TVs without set top boxes could pick them up. You still needed to pay the cableco for the connection to their plant, but IN THEORY you didn't need extra kit to get those channels that you could have got with an aerial in the roof.

      Of course the cableco's loved to hide this fact and push set top boxes and other stuff to you to bump up their MRC and make some money. And with channel bundles they probably made it so that you had to buy other stuff anyway. I'm honestly not sure what revenue the local free-OTA broadcasters saw from cable companies. I would tend to suspect that the cableco's pushed them to let them get the content for free and in return the broadcasters got more eyeballs for their ads and made their money that way, especially today with the mega-cablecos and their muscle.

      With the push to digital broadcasting and HD content, the above may no longer be true as you can't stuff a HD channel in a 6MHz cable frequency band without compression.

    3. Andrew Orlowski (Written by Reg staff)

      Re: Good. Now it's time to end retransmission fees.

      @JohnyQuiz: It is not directly a copyright case but it is very much about whether either copyright can be avoided.

      There is a compulsory license regime for US cable companies - so they can use the free-to-air transmissions and TV companies can't stop them, but they must pay a statutory below-market rate.

      This sounds like the opposite of what you would wish to see, which is control but not compensation.

      Aereo was arguing it was *not* a cable company, but the Court used the "looks like a duck" test to decide that really, it was.

      1. JonnyQuiz

        Re: Good. Now it's time to end retransmission fees.

        @Andrew_Orlowski. My point was that although Aereo looked like a cable company (though only Cablevision, to the best of my knowledge, had a cloud DVR: the broadcasters didn't like that either) it shouldn't be barred from retransmission because they don't pay a retransmission fee. The cable companies shouldn't be paying it either. And when I said the broadcasters should be able to choose whether or not it is retransmitted, I meant "yes to everybody" or "no to everybody", not a pick and chose option.

        Similarly, if I was a cable subscriber in the US and paying for the Discovery channel, but my cable company have supplied me with some rickety old Scientific Atlanta cable box, I'd like the option to be able to say to Aereo:-

        "Here's the list of channels that I am paying for, please deliver them to me with your innovative delivery system."

        Assuming that there is net neutrality (yes, yes, I know), then it means a new player has a chance to take on the incumbents and succeed or fail on the merits of their service, not be beaten by huge barriers to entry erected by those already entrenched.

        Would you agree that if you are a cable subscriber (and hence are paying the broadcasters their retransmission fee already) you should be able to use Aereo in its current form? Or do you think that the broadcasters should be able to triple-dip? How many dips is unreasonable?

        Also, there surely has to be a power saving to be had by not having tens of millions of boxes recording content that then may, or may not, be viewed.

        The CableCARD initiative was along similar lines, to allow users flexibility in their choice of device to view the content. Isn't it time that there was a similar initiative for cloud DVRs?

      2. Ian Michael Gumby

        @Adrew ... Re: Good. Now it's time to end retransmission fees.

        "There is a compulsory license regime for US cable companies - so they can use the free-to-air transmissions and TV companies can't stop them, but they must pay a statutory below-market rate."

        This isn't exactly true.

        Satellite provider Direct TV can't rebroadcast Over the Air channels like ABC, CBS, NBC in areas where the local affiliate doesn't grant them permission, if there is a local affiliate in the area. So even if you're unable to get the over the air signal from the local affiliate, if they say no, you don't get that channel on satellite.

        Its not always a simple thing.

    4. toadwarrior

      Re: Good. Now it's time to end retransmission fees.

      Of course the cost gets passed onto the customer like every other cost because companies have to earn enough money to cover their cos and make a profit to allow for bad times or expansion. To do it any other way is a failure.

  7. Purple-Stater

    Pyrrhic Victory

    All this case did was ensue that FEWER people would be seeing publicly broadcast television that they had 100% rights to see in the first place. That equals a lesser return on investment for the program advertisers, for something that didn't cost broadcasters a single penny.

    And even if a loophole was being exploited, the job of the SCOTUS is not to close loopholes, it's to be the final decision on if the current law/constitution is being followed. It's Congress's job to close the loopholes.

    Yes, their word is law (metaphorically), and that's what we have to follow, but no amount of corporate cheering will make the masses agree. The thought that this decision was "widely expected" is laughable, as the broadcasters were the only people who ever thought they were in the right. Absolutely nobody benefits from this decision, not even the broadcasters (see para. one).

    1. Ian Michael Gumby

      Re: Pyrrhic Victory


      That's pure bunk.

      Most people in cities get their TV from either Sat or Cable.

      In a condo, where do you hang your antenna? ;-)

      (You know what I mean...)

      So you get OtA tv already. You're not missing a thing.

      1. JonnyQuiz

        Re: Pyrrhic Victory

        You are missing the point.

        As a cable or satellite customer you are paying the broadcast companies for the "free advertising-supported" content via the retransmission fees that your cable or satellite company has to pay. If the broadcasters are hogging spectrum in cities, but not providing you with the content, then the broadcasters could always pay a cable or satellite company (or pay Aereo?) to carry their content, as the Fox partially owned BSkyB did to the BBC in the UK.

        If you are a cable or satellite customer and you watch broadcast TV via an aerial then you could, perhaps, ask your provider for a refund of your share of the retransmission fees. I'd love to hear their reasoning as to why that won't fly. Ooh, yes. Somebody, please, do that.

  8. Mario Becroft

    This makes no sense on multiple levels

    1. From the perspective of a broadcaster

    We can agree that a free-to-air TV broadcaster's business model is to broadcast their content, including ads, for which they are paid by their advertisers, for free to as large an audience as possible, limited only by their broadcasting infrastructure and technology (such as number, location and power of transmitters). The more viewers, the more valuable their advertising space and the better for their bottom-line.

    A company comes along offering to extend the reach of the broadcaster's transmission to an even larger audience (who might not otherwise have been able or willing to set up their own receiving equipment), by renting out receiving equipment, at no cost to the broadcaster.

    What sane broadcaster would do anything but jump at this chance to extend their audience at no cost to themselves?

    2. From the perspective of a consumer

    As a consumer I am free to (and broadcaster expects me to) set up my own receiving antenna, a connection from the antenna to a receiver, and thence to a display device to watch broadcast TV.

    But should I choose to rent (or essentially subcontract the purchase, installation and maintenance of) the antenna, the receiver, and the connection between the receiver and the display device, this is illegal? What? Seriously?

    Should I not be free choose whether it is more cost- or time-effective for me to rent this receiving equipment rather than own and manage it myself? Personally, having to install an antenna on my roof, cabling from it to a receiver and so on is more work than I am willing to put in. I would rather pay Aereo a fee to rent this equipment to me, and furthermore house it in their DC so it doesn't take up space in my house.

    Where is the ethical problem here?

    1. Matt Piechota

      Re: This makes no sense on multiple levels

      "Where is the ethical problem here?"

      Most broadcasters (in the US at least) also stream their TV non-real time. Those streams also have ads which they want you to see so their advertisters will pay them. That's the best I got.

      1. Destroy All Monsters Silver badge

        Re: This makes no sense on multiple levels


        Frankly,the "ethical problem" is just another manufactured idea from people who run around like headless chicken trying to detect "loopholes" like old curtain twitchers. Apparently they are also unable to separate the concepts of "monopolies granted to and exploited by Big Content" from "giving producers the opportunity to lay a pipe to end consumer's pockets". Note that I say "opportunity" not "entitlement to be concreted-in by government decree".

    2. Anonymous Coward
      Anonymous Coward

      Re: This makes no sense on multiple levels

      "What sane broadcaster would do anything but jump at this chance to extend their audience at no cost to themselves?"

      The extended audience doesn't benefit the broadcasters in this case. The grossly outdated yet still gospel truth only source Nielsen ratings system has no way to account for them.

    3. Anonymous Coward
      Anonymous Coward

      Re: This makes no sense on multiple levels

      Is part of the point that the renters of the receiving equipment were not actually resident within the area that was broadcast to?

    4. Tom 35

      Re: This makes no sense on multiple levels

      First this has NOTHING to do with "creators should be paid" they don't see a cent of this money.

      It's all about cable companies are getting money from our stuff and not giving us any, wah!

      So cable companies now have to give the broadcaster money "to pay for the production of local content" (what local content? 5 minutes of news? infomercals maybe).

      Now the broadcaster and cable company are owned by the same company so they can use the fees to kick competing cable companies (see CBS/ Time Warner in New York) and block new services (like Aereo) that might cut into their profit.

      It's just about the same thing as ISPs expecting Netflix to give them money to deliver the packets the customer paid for already.

  9. Brewster's Angle Grinder Silver badge

    *innocent face*

    Initially you argue

    "Congress could abolish copyright if enough people wanted it to. They clearly don't."

    but then argue

    "YouTube relies on safe harbour provisions written for another era.."

    Well, presumably, Congress could abolish or rewrite those provisions, if enough people wanted them to. Clearly they don't. Or maybe senators feel they'll be better remunerated trying to repeal the ACA than trying to outlaw Youtube.

  10. Citizens untied

    What sane broadcaster would do anything but jump at this chance to extend their audience at no cost to themselves?

    Why spend money taking risk adapting to new business models when the cost of mounting court cases are much more predictable.

    Where is the ethical problem here?

    The ethical problem posed is that the obsession with accounting will ultimately provide the perfect cover for censorship. The consumers and Aereo are perfectly ethical in my view.

    Maybe someday we will even have tiers of validity in our cable/satellite providers offerings, so you can choose the reality you can afford...

    It occurs to me that reality is cheaper on television than fiction.

    1. P. Lee

      > What sane broadcaster would do anything but jump at this chance to extend their audience at no cost to themselves?

      Ones which charge the cable companies fees rather than have people actually use FTA?

      The cableco's are in competition with FTA they don't want it to exist at all. They also don't want DVRs to exist.

      If the cableco's go out of business, a lot of people's internet goes as well, which means all forms of content provision disappear and the broadcasters are left with no audience because they haven't provisioned towers, they rely on cable.

      None of this is an argument against Aereo. It is an argument to separate content provision from access provision - break up the cable companies. The retransmission argument is silly. I have an HD Homerun. I don't pay fees when I convert RF to IP and transmit them across the garage to my mythtv DVR.

      I wonder if it would be different if the aerials and DVRs were sold rather than rented. The company then just sold the hosting facility?

      Bother, I've commented on one of Andrew's troll pieces.

    2. RobS

      "What sane broadcaster would do anything but jump at this chance to extend their audience at no cost to themselves?"

      Well, it is my understanding that the Supreme court has left that option open. If Aereo want to get a signed contract with the broadcasters (with no money changing hands) and the broadcasters indemnify Aereo from any problems with the content creator (who may feel that the price that they agreed to broadcast across New York state isn't quite the same price that they would have asked for worldwide broadcast rights) then all is good.

      What Aereo aren't allowed to do is to create copies without a license from the creator/copyright owner by playing with the semantics (Monkey Parking is in a similar boat)

      To those who talk about "artificial scarcity" - Just watch the whole of a season of "<your country here> got talent". Talent is genuinely scarce and I applaud the existence of a system to persuade them as have it to make it available to those less fortunate. I agree that the boundaries of the system might need a bit of work from time to time.

  11. John Savard Silver badge

    I Wonder

    "Congress could abolish copyright if enough people wanted it to. They clearly don't."

    I wonder what the value of enough would have to be. I don't think the DMCA was brought in by Congress due to grassroots demand from ordinary voters.

    I don't think that abolishing copyright would be a good thing, but it seems clear that the record companies and the movie companies pretty much dictate American copyright law at the moment; if copyright were seen in terms of its original purpose, as a voluntary agreement made by society in order to encourage more creation, requests for extending copyright protection would receive a lot more scrutiny and be much less likely to be granted.

    1. Andrew Orlowski (Written by Reg staff)

      Re: I Wonder

      You probably need to reassess the power balance in light of the YouTube indie contracts, and Amazon's new contracts for publishers. Particularly the YouTube contract, which relies on piracy for leverage to keep YouTube stuffed with music against the owners' permission. Google can try this on not because these property rights are too strong or too long, but because they cannot be enforced effectively.

      It isn't 1995 any more.

  12. Anonymous Coward
    Anonymous Coward

    Abolish copyright? What an idiotic idea!

    Abolish copyright? Maybe we should have a very short primer on what copyright is. Prior to copyright, in England (and elsewhere), creators essentially owned their works forever. Copyright forced works into the public domain after a limited period during which they could royalties, etc. Abolishing copyright would take us back hundreds of years. Instead, the best thing to do would be to forget Sonny Bono ever lived (not too hard), and set reasonable limits for copyrights.

    I like 34 years, but I might be willing to go up to 70 (including rights passed on to the heirs and estates.) Life plus 70 or 90 years? That's like having no copyright law at all, when the term lasts longer than the lifespan of the majority of the population. Copyrights for corporations should always be limited to 34 years. Go get 'em, Sneezy, Dopey, Doc, Creepy, and Lowlife.

    1. Gary Bickford

      Re: Abolish copyright? What an idiotic idea!

      I'm not sure you are correct. One of the common complaints back in the 1600s was that within days of publishing anything, other printers would make copies and sell them more cheaply. IIRC Shakespeare had to keep his scripts secret until the day of the first performance to prevent others from printing them and even performing the play before his group. In the pre-revolutionary US this was also a common problem, and in Britain Dickens' books were notoriously bootlegged, so even though he was a popular author, perhaps the most popular of the time, he was still left relatively poor because so many of 'his' books were actually forgeries.

    2. Tom 35

      Re: Abolish copyright? What an idiotic idea!

      "Abolish copyright? Maybe we should have a very short primer on what copyright is. Prior to copyright, in England (and elsewhere), creators essentially owned their works forever."

      Not quite. The publisher owned the works forever. In the case of England, Elizabeth confirmed the charter of the Stationers’ Company (1559) who where the only company in all of England allowed to print anything (except for a couple of university presses) and had the power to destroy any books or presses they could find.


    Orlowski loves corporate welfare.

    This is commercial supported content. No one should have to pay to re-transmit it under any circumstances. The fact that this practice was ever tolerated or encouraged is corporate welfare. It's one thing for elected officials pandering to lobbyists to pull this crap and quite another for unelected judges to perpetuate the same nonsense.

    The "quacks like a duck" legal standard is highly dangerous. So is the notion that a single file transfer to a single individual is a "public performance".

    This decision just isn't "the wrong thing" but it was also done "the wrong way".

  14. Ian Michael Gumby

    @Andrew Orlowski

    While I agree with your article. I do have to argue that disruption is a term that has significant meaning.

    Looking at Hadoop for example, it is a truly disruptive technology. If you've ever walked in to an enterprise where everything is in silos, then introduce a horizontal platform... truly disruptive. In a good way.

  15. earl grey

    Clearly Aereo failed to bend over

    Or failed to bend over their customers like the normal cable and broadcasters do. Now they'll be out of this business, but i hope they find a new way to waggle the fingers at the industry insiders.

  16. Richard Remmele

    Adding value to a free signal shouldn't cost you money

    The networks are obligated to send a free signal over the airways. Not everyone can get a clear free signal. I think a company, cable or Aereo, should be able to add value to that free signal by guaranteeing that it be high quality without paying a fee to the network that is required to broadcast the free signal.

    The whole Digital Millennial Act doesn't make sense. Time Shifting that is completely allowed with a VCR is now more restricted with HD. It is still time shifting and the signal that Aereo and cable companies are re-transmitting as a high quality signal still has all the commercial interruptions.

    This original requirement of a re-transmission fee doesn't make any sense logically.

  17. TeaPartyNutz

    The rare author who doesn't surrender to the criminal element

    I'm shocked to see an article about a criminal enterprise ignoring copyright law actually come out on the correct side! That seems to never happen on sites like this. It's as if a whole generation of lawless cretins have grown up believing it was their god-given right to steal from others so long as technology made it possible. And they use the weakest arguments known to mankind to justify their theft. (That they try to suggest they have a moral right to steal is just astounding and a huge mark against the alleged education they have received.)

    1. This post has been deleted by a moderator

    2. JonnyQuiz

      Re: The rare author who doesn't surrender to the criminal element

      Surely Aereo should be invoicing the broadcasters, much as BSkyB did to the BBC, ITV, Channel 4 and Channel 5 in the UK?

      Is this a serious post, comparing time-shifting/place-shifting of advertising supported content (free to the public in return for use of the spectrum) to file "sharing" (wholesale copyright theft)? Or a bit of a laugh when you got back from the pub?

  18. channel extended


    If I record an over the air broadcast. => That's legal.

    if I then store that broadcast. => That's legal

    If I stream that to my TV over my LAN. => That's legal

    If I stream that over the internet to my friends house. Which is is that. I am still watching a bradcast I recorded, but now share with some one. I dunno?

    1. Destroy All Monsters Silver badge

      Re: Confused?

      Assume illegal.

    2. An0n C0w4rd

      Re: Confused?

      which always struck me as interesting - in the Amazon tablet advert, the punter calls up amazon support to ask how to play his movie on the big tv as he has some friends over. Was amazon just encouraging people to violate the public performance clause? seems to be a grey area to me.

      1. RobS

        Re: Confused?

        Don't think that it is a grey area at all. Much more likely that

        a) Copyright is civil law so Amazon would have to encourage people to violate public performance clause on a specific work to be in trouble

        b) Not a great idea to clobber customers in court - too many of them, they make it possible for you to exist

  19. John Tserkezis

    Not quite.

    The networks want Aereo to "go away", and they'll use any means they can. There's lots of arguing over who can and can't legally do something, it's irrelevant - as long as Aereo vanishes - the networks will be happy.

    The reason is money, of course, just not the money you think. Terrestrial networks advertise over certain areas, money they charge advertisers is calculated on that coverage and market. If someone (Aereo or otherwise) re-transmit to an out-of-primary-broadcast area, that advertising gets a wider coverage than what they originally calculated. Worse still, if it's a very local ad, and is not applicable to the new viewing area, then you're dealing with a slot that's wasted.

    The networks can't calculate based on that, because it's outside their hands, they have no idea and no control over what's being shown, and where it's being shown.

    Online broadcasting is a little different. They have some control over the ads, even if the program material is otherwise the same - to the point the rest of the world can't get even the program material. Oops, sorry, now do you know why pirating is "rampant"? Consumers don't care where it's coming from, and even less so with the rant that some "silicon valley startup behaving like children" are the cause of all this.

    They're not. It's the networks delivering "quality" (ahem) programming, on THEIR terms, not yours, and they will squash anyone like a bug if you get in their way.

    1. Andrew Orlowski (Written by Reg staff)

      Re: Not quite.

      Not really. They want to control their stuff for sure, and they want to be paid for it.

      Aereo has useful features, there is no denying that. They can still build a business adding value to other people's TV. What they can't do is build an ersatz cable business that pretends it isn't.

  20. dan1980

    The biggest problem here is that the copyright laws being relied on were written prior to the advent of DVRs or the mass, commodity, availability of cloud services. That is why such back-and-forward arguments and judgments are occurring both in the US and around the world. We had a similar thing in Australia with Optus.

    Some people are of the opinion that a collection of one-to-one transmissions is just a technicality away from a one-to-many transmission. I agree but tend to think it's a rather large technicality. Computer network terminology should be borrowed to term these transmissions unicasts, rather than broadcasts.

    While those arguing against Aereo claim that it is splitting hairs to say that Aereo wasn't the equivalent of a cable service, the hairs must be split finer still when trying to decide exactly what, legally, is the difference between it and Cablevision's cloud DVR service.

    The 'volitional-conduct test' established in Cartoon Network vs Cablevision essentially said that if it is under the user's control then the company providing the service is not liable. This is the same provision subsequently relied on by every cloud storage provider to protect themselves from potential copyright claims when a user uploads copyright material to their service. In all other practical respects it is the same concept - a user chooses what to store (record) and when and where to retrieve (transmit) it. In both cases, the material is stored on the provider's hard drives and shuffled around through servers and caches but, as the important parts are controlled by the user, the provider is covered.

    It's important to note that this test has not been failed by Aereo. Instead, the Supreme Court has essentially created and applied a new test, which is to have a look at the service in question and see if it provides essentially the same service as a cable company. In other words, 'does the service look like a cable service'.

    In practice, they seem to want it to work like this: "if you look like a cable service then you don't get the benefit of the volitional conduct test". Straight-forward enough perhaps, but the big problem here is that the Supreme Court has provided no guidelines for how one might go about deciding whether a given service looks sufficiently like a cable service or not.

    The real chaos here is succinctly put by Justice Scalia:

    "It will take years, perhaps decades, to determine which automated systems now in existence are governed by the traditional volitional-conduct test and which get the Aereo treatment. (And automated systems now in contemplation will have to take their chances.)"

    However loaded with caveats the majority opinion was (very loaded), without clear guidance on how this ruling and new 'what-does-it-look-like-to-you' test can and should be applied to other services, this ruling does constitute a major 'chilling effect'.

    The author thinks it doesn't but I tend to side with Justice Scalia on this one - without clear guidelines, other services will be 'taking their chances' and some may well decide it's too risky to proceed. If that's not a 'chilling effect' I don't know what is.

  21. dan1980

    Splitting hairs

    I wonder what happens if I rent a DVR from the local Rent-A-Center? Are they then 're-transmitting' to me because they own the hardware?

    Okay, I still physically control the hardware so there's a difference.

    What about if I live in an apartment block and put that DVR into the basement, where the antenna signal comes in. I don't own or control the that location. Is the body corporate then liable?

    Okay, there's still just the one DVR there so there's still a difference.

    But what about if they allow all the tenants to do that? That's now a bunch of one-to-one transmissions, like Aereo.

    Okay, we are still responsible for the hardware (even though we rent it) so still not the same.

    But it's all getting a bit messy down there now so what if, as part of our rent, the body corporate agrees to rent a dozen identical DVRs and install a new, stronger antenna to run them. Each DVR is assigned to a single apartment and each tenant has exclusive control over that unit.

    What, now, is the difference?

    Yes, it's a deliberately farcical situation but the point is that when the scale and the remoteness of the operation are taken out of the equation, Aereo is essentially analogous to the setup proposed above.

    At what point does such a setup step over the line to have (as Breyer, J wrote in the majority opinion) "an overwhelming likeness"? I.e., at what point in the progression from personal, in house device to cloud-service does a DVR become enough like a cable service to be excluded from consideration under the 'volitional-control' test?

    The majority opinion makes particular note of a difference between a cable service and Aereo, which is that unless and until a user activates the service and chooses what to record/watch, the service is "inert". As Breyer, J. points out, both Aereo and the three dissenting justices believe this to be a "critical" difference as it not only speaks to the volition of the user (and not Aereo) but provides a clear distinction between the operation of a cable service and Aereo's service.

    The 6 justices of the majority accepted that difference but were of the opinion that it does not constitute a "critical" difference.

    The point is that, far from what some would have you believe, the law actually supports both cases nearly equally and it all hung on the interpretation of a few words ("perform", "public", "transmit", etc...) - all of which were laid down before the advent of the technology currently employed.

  22. Anonymous Coward

    Hah! I looked at the title of this article on the El Reg front page and bet myself a beer it was an Orlowski piece. Cheers!

    You can have the letter of the law (which Aero were apparently kosher by) or the spirit of the law (which was the ruling). You can't have both without making the law pointless.

  23. AlexV

    Technically Correct

    The problem is with a system where you can't know for sure whether something is legal or not until (well) after you've done it, and it's legality will depend on opinion. They could have made the decision instead that yes, what they are doing is not illegal according to the exact specifications of the law as written, but we'd quite like it to be illegal anyway - but for that we need to go through the full process of amending the law *as written*. If the ammendation were accepted, then the new law would be available for anyone to read and know in advance if what they wanted to do was legal or not.

    That's what I see as the problem. Aereo were technically correct, which is the best kind of correct.

  24. dan1980

    What I find most interesting in this is one of Breyer's conjectures that he uses to support his opinion of the "overwhelming likeness" between Aereo and a traditional cable service:

    ". . . why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. They do not render Aereo’s commercial objective any different from that of cable companies. Nor do they significantly alter the viewing experience of Aereo’s subscribers. Why would a subscriber who wishes to watch a television show care much whether images and sounds are delivered to his screen via a large multisubscriber antenna or one small dedicated antenna, whether they arrive instantaneously or after a few seconds’ delay, or whether they are transmitted directly or after a personal copy is made?"

    Now, that sounds somewhat reasonable but why isn't it applied the other way?

    One could equally use the same argument for Aereo's similarity to a DVR service - it doesn't "significantly alter the viewing experience". And so, given time-shifting does not incur retransmission fees, by Breyer's logic neither should Aereo.

    The point of this all is that the 6 consenting Justices of the Supreme Court have decided that, while they believe that it is important what the service appears to be to the end user, they will only consider the similarity to something that incurs retransmission fees, and ignore any similarities to something that does not incur such fees (e.g. Cablevision's DVR service).

    What is telling is that, in his discussion of similarities, Breyer never mentions Cablevision. That strikes me as profoundly odd - to not even mention the one service that could be considered most similar.

    One of the questions I would put to the Supreme Court - if able - would be to ask how Aereo might change their service so as not to be liable for retransmission fees. Perhaps that's not the Supreme Court's job but they are supposed to clarify things.

    As I can't ask that of SCOTUS, I instead as Andrew - In your view, what could Aereo change such that they should be seen as more similar to Cablevision than a cable service?

    What if each user was provided a virtual machine, dedicated to them, on which they had to press some buttons to install the DVR feature? I'm thinking something like you see in a parallels-type web host where you can do one-click installs of Apache and MySQL and so forth.

    Would that do it?

    What about if the users had to scan for channels themselves and then install software on their PC/phone/tablet that queried the TV guide directly and then transmitted the code to the DVR software in their personal, rented VM?

    What I am asking (again) is: at what point does a service bear more similarity to a cloud-DVR service like Cablevision (which is not subject to re-transmission fees) than to a cable service (which is)?

    1. Someone Else Silver badge


      What I am asking (again) is: at what point does a service bear more similarity to a cloud-DVR service like Cablevision (which is not subject to re-transmission fees) than to a cable service (which is)?

      Answer: When Big Business stands to make more money from such a distinction.

      Next question?

      1. Bob Camp

        Re: @dan1980

        Cablevision most certainly is subject to and pays retransmission fees.

        1. dan1980

          Re: @dan1980

          @Bob Camp

          My apologies - I got lazy in the course of my repeated long-winded rants. Yes, Cablevision, as a cable service does of course pay retransmission fees under the 'retransmission-consent' agreements it makes with the television stations.

          Where I have been referring to "Cablevision" through my posts, I was specifically meaning their RS-DVR service.

  25. Someone Else Silver badge

    What an immense pile

    The winners in the tellyco's case are ethical technology companies, creators, and democracy itself

    No, Andrew, the winners in this case are the fat-ass corporatists and their lackeys in positions of power (and, apparently, their other lackeys in the press). Outdated business plans triumphed over innovation (just like with digital music distribution); democracy left the building a loooong time ago.

  26. Aquilus

    Blame the supreme court not Aereo

    The 6 majority justices looked at what the letter of the law said, ignored it, and decided on a verdict contrary to the law but that fitted in with their own morality and sense of justice. That's fair enough, but at least be honest and admit that's what they did. The 3 dissenting justices looked at what the letter of the law said, found that Aereo wasn't in violation, and decided that if the law needed to be changed to close the loophole, Congress should be the ones to do so. I find myself siding with the dissenters.

    To claim that Aereo ignored copyright law is disingenous in the extreme. They complied precisely with copyright law, going so far as to use a dedicated antenna and transmission path to make certain of that. The fact 6 justices have pulled the carpet from under their feet by inventing a whole new aspect to copyright law (do you look like a cable company) is hardly their fault.

  27. Anonymous Coward
    Anonymous Coward


    How is Aereo any different than Pandora? They're both streaming copyrighted content.

    If you want to listen to Pandora w/o commercials, you have to pay them a monthly fee.

  28. Bob Camp

    I think you're all missing the point

    If you read the decision, all nine justices thought that what Aereo was doing was illegal. They're just arguing over which law(s) it is specifically violating and how. They found Aereo had direct liability for performance infringement, but they also could have been found to have secondary liability. Remember Grokster and Napster? Peer-to-peer file sharing is legal, but if the majority of your users are using it illegally then you are secondarily liable for that.

    Similarly, the court didn't even address Aereo's liability (primary or secondary) for *reproduction* infringement. That would have been a separate lawsuit had this one failed.

  29. lleres

    A rather more compelling argument

    "<..> it’s more clear than ever that Congress needs to revisit copyright in this country — except, given how much money rights holders donate to various campaigns (both Democratic and Republican, though somewhat more flows to Democrats), it’s incredibly unlikely that any new law would be remotely pro-consumer. Nevertheless, the entire point of the Copyright Act of 1976 was to address the many technological inventions since Congress’s last examination of the law in 1909. A similar reconsideration needs to take place today to address questions of streaming, retransmission, device-shifting, time-shifting, fair use, and DVRs. What we have today is a hodgepodge of court decisions on these topics."


    1. dan1980

      Re: A rather more compelling argument


      You are 100% correct.

      When the precursors to today's cable providers arrived on the scene, they went through this same process. The courts of the day ruled that they were not in breach of any copyright. Based on the laws as written, that was the correct decision.

      The laws were then updated to deal with the new technology and the decisions eventually overturned.

      The laws need to be updated again but I feel that no one really wants to. It's a minefield now, with many different services using different methods to store and 'transmit' data and no one wants to put too much on paper about it because they are worried about what effect it will have on existing products that they don't intend to ban.

      Breyer, in his opinion, said that the ruling was narrow and couldn't really be applied elsewhere but the very fact that he felt it necessary to explicity mention reducing hte scope shows that he acknowledges that the ruling could very well be used as precedent to apply to all manner of similar and not-so-similar services.

      The test they have devised cannot be used by a start-up to judge whether their proposed new technology infringes or not - they essentially have to ask themselves: would the Supreme Court view this service as bearing an "overwhelming likeness" to cable providers.

  30. ja

    Curious about signals received in International Waters

    What if they place antennas on a ship located outside of US territorial waters? Or outside of British or other European territory?

  31. flayman

    "Regardless of the device or process used to communicate a work to the public, the authors of that work deserve to be compensated, ..."

    And how are they paid when a terrestrial broadcast is picked up on a television antenna? Usually by the broadcaster through ad revenue. *Sharp intake of breath* But what if the viewer is using a Tivo and skipping the ads?! Oh well.

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