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6/25/2014
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Supreme Court Rules Against Aereo

Supreme Court rules that Aereo's scheme for delivering broadcast TV over the Internet violates copyright law; legality of cloud storage and other services remains unresolved.

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The Supreme Court ruled Wednesday in a six-to-three decision that newcomer Aereo's antenna-farm scheme for delivering broadcast TV over the Internet is essentially the same as a cable TV service and that it violates copyright law.

The case has been closely watched by traditional content providers such as the ABC, CBS, Fox, NBC, and PBS networks, who sued Aereo, as well as Internet service providers who are afraid that a ruling against Aereo would be a blow to innovative new technologies and services. But the court specifically did not address the issue of other technologies in its narrowly drafted decision.

"Given the limited nature of this holding, the court does not believe its decision will discourage the emergence or use of different kinds of technologies," Justice Stephen Breyer wrote in the majority decision. "We have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content."

[For more on the Aereo debate, see Aereo Vs. Broadcasters: 5 Questions For Supreme Court.]

The legality of services such as cloud storage and remote storage DVRs will have to wait until those technologies come before the court, Breyer wrote.

The decision reversed a decision by the US Second Circuit Court not to issue a preliminary injunction against Aereo and sends the case back to the court. Chief Justice John Roberts and associate justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined in the majority decision. Justice Antonin Scalia filed a dissenting opinion, joined by justices Clarence Thomas and Samuel Alito.

Aereo's service is available in a handful of metro areas and uses thousands of small antennas to receive over-the-air television broadcasts. For a monthly fee, subscribers can access via the Internet the signals received by a single antenna. A server tunes the antenna to the broadcast selected by the user and a transcoder translates the signal, which is buffered in the subscriber's folder on Aereo's hard drive and streamed to the subscriber.

Aereo argued that it is an equipment provider and is simply giving subscribers access to material that they could lawfully access with their own equipment at home. Because there is a one-to-one relationship between the antenna and the subscriber, transmitting the signal over the Internet does not constitute a public performance. Broadcast networks disagreed, saying that the scheme violated their copyrights.

It is not the first time that the issue has been before the court. With the emergence of Community Antenna TV (CATV) -- now the cable television industry -- in the 1970s, the Supreme Court ruled that CATV was more like a viewer than a broadcaster and did not fall under copyright law restrictions on public performances. In 1976 Congress responded with the Transmit Clause of the Copyright Act, specifically declaring that CATV or cable TV service does constitute a public performance and falls under copyright restrictions. This means that these service providers must pay for or otherwise get permission to use the content they distribute, a requirement that Aereo attempted to skirt.

"Aereo performs petitioners' works publicly within the meaning of the Transmit Clause," Breyer wrote. "It does not merely supply equipment that allows others to do so."

Breyer noted that unlike traditional cable service, the Aereo service is on-demand and not transmitted constantly. "But given Aereo's overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here."

During oral arguments in April the justices expressed concern that equating Aereo's scheme with cable TV would have an negative impact on other services, such as cloud storage and other forms of remote access to content. Attorneys arguing for the broadcasters sought to assure the justices that they did not have to address these issues in deciding against Aereo.

"I'm asking you not to decide the cloud computing question once and for all today, because not all cloud computing is created equal," said Paul D. Clement, attorney for the networks. "The details of it might matter."

US Deputy Solicitor General Malcolm L. Stewart, testifying as a friend of the court on behalf of the networks, said, "there is no reason that a decision in this case should imperil cloud locker services generally. . . ."

The justices will wait for future cases before ruling on other technologies. "We cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us," Breyer wrote.

InformationWeek's new Must Reads is a compendium of our best recent coverage of the Internet of Things. Find out the way in which an aging workforce will drive progress on the Internet of Things, why the IoT isn't as scary as some folks seem to think, how connected machines will change the supply chain, and more. (Free registration required.)

William Jackson is a technology writer based in Washington, D.C. He has been a journalist for more than 35 years, most recently covering the $80 billion federal government IT sector for Government Computer News. His coverage has ranged from architecture to international ... View Full Bio

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D. Henschen
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D. Henschen,
User Rank: Author
6/25/2014 | 4:08:30 PM
You Don't Need Aereo To Cut The Cord
Wake up people. Cable, satellite and other broadband providers have hoodwinked people into thinking that they are the only route to TV. They did that by twisting the facts around the transition to digital TV a few years ago. Guess what? All those ABC, CBS, NBC, Fox, PBS stations and affiliates and many independent stations are still BROADCASTERS. They still have great big powerful antennas and are beaming their signals out from cities large and small FOR FREE. With the move to digital, most stations switched to the UHF band, and in the bargin, they also added extra channels offering weather, old movies and other secondary content.

ALL YOU NEED IS AN ANTENNA. That's all Aereo used to capture these signals and resell them. But if you have an antenna, you can get them for free. Check out AntennasDirect.com for a selection of antennas. Some are as simple as rabbit ears (though they are a bit different and generally smaller). I installed the small DB2 antenna in my attic because I'm 30 miles from NYC and needed something stronger than a desktop antenna. The picture IS BETTER than what you get from cable, sattelite or FIOS because the feed isn't compressed, which those guys have to do to fit all those worthless extra channels on the same pipe.

No, you won't get HBO, CNN, Bravo, ESPN or any other cable-only premium channel, but you can get some of that content through sports apps, Hulu, Netflix, Amazon and so on. The combination sure beats paying $50-$80 per month for "57 channels and nothing on."

 
rradina
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rradina,
User Rank: Ninja
6/26/2014 | 10:03:19 AM
Re: You Don't Need Aereo To Cut The Cord
Perhaps a minor technicality but if the picture is better, it's because it is less compressed.  Correct me if I'm wrong but OTA digital TV is still using some flavor of MPEG compression to send the video to your TV.

Regarding reselling content, that's specifically what Aereo claims it did not do.  It claimed to sell access (i.e. rented access) to equipment that you can legally own in your home that does the same thing.  It's unfortunate the court ruled that approach illegal because of a "looks like a duck, quacks like a duck, it must be a duck" judicial methodology.

Although in Scalia's dissent he still agreed with the feeling of the court that what Aereo is doing "ought not be allowed", he blasted the majority saying that they "invented" a result-driven ruling rather than considering Aereo might have found a loop hole.

While I can appreciate a ruling for Aereo would have completely disrupted broadcaster's retransmission fees paid by CATV as they possibly duplicated Aereo's solution, I don't really care.  The fact that they are allowed to use public airwaves to offer content for free but if CATV includes it along with a lot of other pay content, they get to charge... is madness.

I think Congress should fix this mess and force cable companies to unbundle OTA from other pay content so we at least have a choice to pay for OTA or use our own antenna.  The law should also require CATV boxes to provide external antenna inputs and seemless channel selection.  (Dish used to do this in their receivers before they added capacity and included OTA streams in their packages.)
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