Aereo loses in 10th Circuit court

Discussion in 'Internet Streaming Services' started by dpeters11, Feb 19, 2014.

  1. Satelliteracer

    Satelliteracer Hall Of Fame

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    Don't forget, as recently as two years ago the Supreme Court was ruling whether you could resell a book. Something called the "first sale" doctrine is the law which governs this activity.

    Not sure in your example how the programming is one paid for, however. If Aereo was offering this at no charge, just like an OTA, I don't think you would have the networks upset. Simple reason is they are getting retrans fees right now from cable, telco and satellite providers. They don't receive any from someone that has an OTA. Once you start charging for their created content, they're going to perk up and take notice.
     
  2. James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Gold Club DBSTalk Club

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    The first sale doctrine allows a person or company who legally obtains a copyrighted work to sell or dispose of that property in any way they see fit. Buy a legal copy of a textbook in Thailand, import it to the US and sell it and the Supreme Court will allow you to do so (according to a case decided in March 2013). But that book is a physical object.

    The logic gets more complicated when it comes to digital material.

    Under copyright law selling or disposing of the property in any way they see fit does not include making copies. If I legally buy a copy of a song on iTunes can I legally sell it by converting it to a WAV format and then deleting the song from my iTunes? Can I burn the song to a CD ROM as a collection as long as I legally obtain each original copy and delete the originals after the burn? The transcoding process is making a copy.

    And that is where Aereo hits a problem. Assume they were a small company using a single antenna, single tuner and had one customer. One could argue that they legally obtained the programming of a local TV station over the air on their single antenna and single tuner, and the copy they sold their one customer was transferred to the customer - the original programming was not kept. They are in the business of making copies of TV broadcasts - and whether those broadcasts are delivered seconds after reception or stored on a server until viewed (and potentially viewed again) what they offer to their customers is NOT the original program. It is a copy. And the copy cannot be transferred without the permission of the rights holder.

    Multiply one into the thousands of antennas (acting as an array, whether intentional or not), thousands of tuners, thousands of recording devices and thousands of customers and it gets a lot harder to say that they are not operating just like a cable or satellite system that receives, transcodes and delivers programs to customers for a price. Which should place them under cable and satellite's rules for rebroadcasting copyrighted content.

    Theoretically DirecTV receives each local TV station, transcodes it and uplinks it ONCE to a satellite system. If there is a SD and HD feed they would uplink it twice. DISH has locals that are uplinked to both of their arcs and could be uplinked three times (HD east arc, HD west arc, SD west arc). But for the sake of argument, lets look at a station that is only uplinked once. Is DirecTV making a copy of that feed? They are receiving one signal and transmitting one signal - should it matter how many people can receive that one signal?

    Such twisted logic would make it possible for DirecTV to sell their legally obtained OTA signal however they wanted without violating copyright law (Theory: DirecTV isn't making a copy - they are just transcoding the signal once). DISH could put up three antennas and three tuners and transcode the feeds separately for each arc through twisted logic. Cable systems could convert one signal to QAM or pass through the ATSC frequency shifted and not be making a copy under such logic.

    The twisted logic fails because what DirecTV, DISH and cable does is considered re-broadcasting. It would be considered rebroadcasting even if they only had one customer. And that is the way it should apply to Aereo.
     
  3. Laxguy

    Laxguy Honi Soit Qui Mal Y Pense.

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    Interesting to speculate what we'd have now if the FCC had ruled that re-broadcasting was just fine, and no rights accrued to the original broadcaster. Well, it could have happened!
     
  4. kenglish

    kenglish Icon

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    It would just mean that your local stations would all be home shopping channels, and there would be no news, no local production and no one to answer the phone when you call them. Think "Mega-Corp radio".....
     
  5. Laxguy

    Laxguy Honi Soit Qui Mal Y Pense.

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    No.
    Stations would be selling ads as they do now, counting noses of OTA and subscription services, as they do now. They just wouldn't have the direct revenue from sat and cable companies.

    I am more interested in other facets of that hypothetical.
     
  6. James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Gold Club DBSTalk Club

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    It depends on if the other protections built into the current law survived.

    The original problem was a satellite company picking up local network stations and transmitting them nationwide - which violates the affiliation agreements of the stations and could, theoretically, lead to the problems kenglish proposes. Now that the satellite market has grown to a combined 34 million "subscribers" one could calculate that nearly a third of television viewers would be able to receive a completely out of market feed and not their local station. (Subscriber counts include a calculated number representing commercial accounts - so it is inaccurate to say the subscriber number is the number of television households. But it is the number we have to work with.)

    The decision of the courts was that satellite companies could not do that ... and the law passed by Congress that allows re-broadcast was written to respect the affiliation agreements ... delivering local channels only into their local markets (defined by Nielson - not their actual RF coverage) and allowing out of market "distant" stations only where no local affiliate covered the viewer. Not a horrible law as it gave permission overriding the court decision.

    Where the system fails is with "consent to carry". I don't mind the regional restrictions that protect the affiliation agreements networks have worked out with their stations. But the "consent to carry" system where a station transmitting a freely received OTA broadcast can refuse to have that signal delivered to customers they should be reaching is wrong.

    So keep the regional restrictions ... protect the local stations from being replaced by an out of market affiliate. But get rid of consent to carry. All it has become is an additional revenue stream for something the station is already supposed to be doing ... reaching their own market with their TV signals. The benefit of reaching more TV homes should be payment enough.
     
  7. jsk

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    Scenario: If I live in an apartment building and have a sling box with an OTA tuner connected to my apartment's OTA antenna, that would be legal, right?

    So, what if I were to be able to rent rack space in a server room, rent an OTA tuner that is connected to a common OTA antenna and a Sling box. Why wouldn't that be legal? That is very much like what Aero is doing except they claim to be also renting out a dedicated antenna to you as well and the electronics are packed into a smaller space. I don't even think they should have to give you your own antenna, just so you have your own tuner and stream.

    If the courts rule against Aero, then would Sling boxes/adapters also be considered illegal? I wonder if that is why Dish is concerned with this. Also, they would probably want to take over Aero and integrate the technology in their receivers, which would mean no more retrans battles in Aero markets.

    Also, would it be legal for people to rent equipment only "apartments" with their own mailing addresses? Each "apartment" would have an Internet connection and a coax cable connected to either an OTA antenna, local cable service (connected by the local cable company), Dish Network dish or DirecTV dish. Each "tenant" would have to purchase their own legal subscriptions using the mailing address as the service address. The tenants could rent various pieces of equipment such as OTA tuners, cable/satellite boxes and technologies like Sling that would provide them with their own stream from their equipment. Of course, no pets would be allowed.
     
  8. James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Gold Club DBSTalk Club

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    If I were to buy a VCR (or in this century, a DVD recorder) and record television programs for distribution to others that would be illegal. Such illegal use does not make the VCR or DVD recorder illegal. The use of a device for an illegal purpose does not make all uses of that device illegal.

    If the use of a device for an illegal purpose made that device illegal there would be no guns. There would also be no cars since they have been used for crimes ranging from speeding to homicide (not to mention they can be illegally parked). One can commit crimes with many everyday items ... someone falsely reports a crime on a telephone and all telephones become illegal? Someone strangles a woman with her own clothes and clothing becomes illegal? (That one would conflict with public indecency laws.)

    The Slingbox would be like the VCR ... it would not become illegal simply because it could be used for illegal purposes.
     
  9. kenglish

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    You mean, "Like radio stations still have staffs of live DJ's, and do big remotes....."?

    Truth is, many stations are barely surviving only due to the retrans money they get. Without it, plenty of stations would just have to close their doors.
    The "numbers" in the ratings are only a selling-point for the number one and (maybe) number two stations in a market. Commercials are sold cheaply to all comers, and the fees make up the difference between life and death.
     
  10. Laxguy

    Laxguy Honi Soit Qui Mal Y Pense.

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    For some, no doubt. There'll always be marginal operators in most industries.

    But while it'd put the screws to some, most stations would remain competitive, pulling a lot of material from the mother ship, but maintaining a decent news and weather staff.

    I don't see how Radio DJ's fit into a discussion of TV retrans fees.
     
  11. James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Gold Club DBSTalk Club

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    DJs are expensive ... especially good ones. Random voiceovers are less expensive. When one is cutting costs the people are often the first to go. In TV it would be local produced programming and local news that would get the axe. There would be more infomercials when not in network programming. Assuming the channel could afford to be a network affiliate.
     
  12. Laxguy

    Laxguy Honi Soit Qui Mal Y Pense.

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    How many live Dj's on TV since American Bandstand? Or maybe Mtv, etc. Yes, good ones are expensive, but local DJ's? Live DJs are a luxury, and are pretty scarce even on radio.

    Nonetheless, there would still be local TV news in the absence of retrans fees, though I concede some marginal stations would go under.
     
  13. James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Gold Club DBSTalk Club

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    You changed the topic. You said "I don't see how Radio DJ's fit into a discussion of TV retrans fees." It is an example how something considered important - perhaps even the most important element - is lost with cost cutting.

    Radio without DJs? Like a jukebox without personality? Fairly common now ... and fairly silly as it was the personalities that made the station better than the next station over playing the same songs.

    TV stations were built around the concept of serving the community ... and local produced programming and news/information programming filled that need. Now cheap syndication and paid infomercials fill the hours. Including hours once filled with news.


    It is a shame that stations were given this as a revenue stream instead of access to viewers. I have no issue with must carry laws ... I disagree with consent to carry and the fees consent allows. Stations survived without a pay per satellite/cable viewer system in the past. They should be able to survive without the extra extortion.

    And if they do get the extra fees viewers should get what they are paying for ... less syndicated/infomercial crap and more local production.
     
  14. Laxguy

    Laxguy Honi Soit Qui Mal Y Pense.

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    It was kenglsih who introduced radio DJs to the discussion. I see the analogy, but that's what it is.

    I agree with the rest of your post, but wonder if even canned DJ's might have personalities? At least some of them!
     
  15. kenglish

    kenglish Icon

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    My comment about radio DJ's was due to the fact that radio and TV are both part of the Broadcast industry, and radio has already fallen greatly, due to the lack of advertising income, and the excess regulations that their competitors do not face. I see the same path being taken by the Television side of the industry.
     
  16. Laxguy

    Laxguy Honi Soit Qui Mal Y Pense.

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    And it's understandable, but I do think radio's decline has more to do with a changing world than regulations. Ad revenue is a function of number of ears tuned in, and those are affected by many things. Competition from sat. radio, Pandora, Spotify, etc. as well as TV have diminished the marketplace for radio.
     
  17. James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Gold Club DBSTalk Club

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    If the alternatives to radio had to worry about picture quality as much as the alternatives to TV/satellite/cable then radio might have had a better chance. For now they have to live in the margins of profitability trying to make a little money often enough to survive or provide something that truly competes. Not a bad thing.

    My local radio station plays too many commercials and has an annoying morning show. I can get the music and less banter via satellite. Guess what I listen to?

    Somehow the "less popular" stations in the TV market are surviving as "must carry" (no payment from cable or satellite) stations. The "consent to carry" stations should be able to make it on their popularity and ad revenue. But the "because we can" fees must be paid. :(
     
  18. coolman302003

    coolman302003 2014 NBA CHAMPIONS!

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  19. SayWhat?

    SayWhat? Know Nothing

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    The decline of broadcast radio rests solely at the feet of Clear Channel Communications and other megalopolies.
     

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