Broadcasters lose final appeal to take down Aereo

Only two out of 12 judges supported the broadcasters, but the fight isn't over.

Read the whole story

 

[Dilbert]

They are judge shopping! That is to show, once again, if you got money you can make the legal system rule in your favor more often than not. This must be costing them a fortune in legal fees, but they are justifying that, no doubt, by balancing the legal costs against bogus "lost revenue" numbers which are probably in the billions. 'If every single person watched every commercial, and they all bought something, we could make one beeeeelion dollars!' Uh huh.

 

[Smeghead]

He even expresses concern that the court's decisions are hurting stock prices of major media companies.

Since when is it the court's job to look after the stock price of a company?

Existing companies' business models cget disrupted from time to time by new technologies. Too many of them use the courts as a means to prop up their existing empire rather than try to find new ways of making money.

Methinks Judge Chin has forgotten his place somewhat?

 

[wesley96]

If a new technology comes along and undermines existing profit model, the ones hurting should find ways to innovate, or take a hint and integrate the new technology. Alas, when you're drenched in status quo, it flies right above you.

Meanwhile, I'm frankly amazed again and again how that dissenting judge is all about defending the profits and stock prices of the media companies. I guess he could be playing devil's advocate (it does illustrate the position of those companies pretty well), but still.

 

[JEDIDIAH]

it really infuriates me to hear a judge whining that someone's stock price might go down. It's not the job of the judiciary to protect business models or stock prices. They are there to apply the law (as they interpret it) to the facts of the case. All that such "sympathy" does is to make the judiciary appear corrupt.

 

[duncansil]

Smeghead[/url]":bacc4q0h]

Since when is it the court's job to look after the stock price of a company?

It's getting harder to recognize the Untied States for the principles it was founded upon.

We need a few more Snowdens.

 

[yankinwaoz]

How does any of this threaten the Free Over the Air pact that was implemented at the dawn of TV?

Do you really think we are going to end up like Britain with annual TV license fees, and enforcement vans detecting illegal televisions and kicking in doors? I think our 2nd amendment, the right to bear arms, will make the job of enforcing OTA TV fees the world's most dangerous job. God knows you couldn't pay me enough to get shot trying to assure that CBS gets their $5 a month.

The airwaves are a public resource. We allocated a chunk of the spectrum for FREE TV broadcast. If a network wants to go private, then then can do so over the Internet, or cable, or satellite. OTA is no longer the only path to our TV's.

 

[joemullin]

MyDogHasFleas[/url]":1oe3iwvr]As far as I can tell this is a completely misleading story. I don't know if Joe Mullin is ignorant, just didn't do the research, or if he is just reporting it this way to deliberately feed a false narrative.

The broadcasters have not "lost final appeal to take down Aereo". The hearings so far are about whether a preliminary injunction would be issued to shut down Aereo, and the news is that one of the appeals (not THE FINAL appeal) of the denial of that injunction has been rejected. The question still remains to be resolved at trial.

Let me say that again: The question still remains to be resolved at trial. This isn't over by any means. The standard of evidence and proof is quite a bit more in favor of the plaintiff at trial than at a preliminary injunction hearing.

The preliminary injunction issue is actually mentioned, but it was added in the editing process a few minutes after publication, so you may not have seen it if you read it immediately. Sorry about that.

Having said that, I don't think the headline or the text of the story is misleading at all. I mentioned Aereo's other cases and said "the fight isn't over" right in the deck, up top. The PI motion in cases like this is a big deal, and it's hard for me to see a broadcaster victory after this.

The broadcasters made two separate appeals, with two separate arguments, to get what they wanted—which was to have Aereo shut off, immediately. Their bid to shut down Aereo right now really has been lost, in a way that's very final. The story & headline are accurate.

 

[eye776]

He even expresses concern that the court's decisions are hurting stock prices of major media companies.

This sort of crap makes me cringe and laugh at the same time.
So now it's the judiciary's new job to keep stock prices up and shareholders happy for publicly traded companies ?

Frankly I think Big Media should go balls out like Xbox One (eighty) and announce the draconian DRM & payment plans combo they have wet dreams of at night. Then when it falls falt on its face we can all move on past this crap.

 

[metavirus]

MyDogHasFleas[/url]":g4bem1nw]As far as I can tell this is a completely misleading story. I don't know if Joe Mullin is ignorant, just didn't do the research, or if he is just reporting it this way to deliberately feed a false narrative.

The broadcasters have not "lost final appeal to take down Aereo". The hearings so far are about whether a preliminary injunction would be issued to shut down Aereo, and the news is that one of the appeals (not THE FINAL appeal) of the denial of that injunction has been rejected. The question still remains to be resolved at trial.

Let me say that again: The question still remains to be resolved at trial. This isn't over by any means. The standard of evidence and proof is quite a bit more in favor of the plaintiff at trial than at a preliminary injunction hearing.

Look, I am no fan of either side here. And Aereo may well eventually win. But I do want my news to be reported factually so that we the readers can understand what's really going on.

This. It's kinda weird that the author seems to be cognizant of the distinction in the text of the article - but the headline is way more declamatory than is warranted.

Quick law lesson: If the district court ruled on the actual MERITS of the case (rather than just an injunction), and then the broadcasters exhausted their appeals, their other cases in other states would be dismissed by virtue of the doctrine of res judicata. http://www.jstor.org/discover/10.2307/1 ... 2468070111

 

[MyDogHasFleas]

yankinwaoz[/url]":2xbxccvp]How does any of this threaten the Free Over the Air pact that was implemented at the dawn of TV?

Exactly. This is yet another stupid thing about this article. OTA is not threatened. In fact it's now a lot better than it used to be with the move to digital OTA.

Anyone can put up an antenna on their personal dwelling, receive a signal, and use it personally and in the household however they want. They can even record it for timeshifted viewing, or retrans it over the net (e.g. with a SlingBox) for placeshifted viewing. All this is perfectly legal and is not being challenged in any way by this lawsuit. It's still a private performance to you, the antenna-putting-up guy.

The question on the docket is, can Aereo legally stretch the boundaries of this law by allowing the customer to "lease" a "private antenna" from Aereo, and receive the broadcast, or time-shifted recording thereof, over the Internet from Aereo, after it's been converted and streamed using IP.

This is a really tricky one. On the one hand, the copyright laws sort of allow Aereo to do what they are doing, maybe, in some tricky legal loophole sense. On the other, it does not appear to be the intent of Congress when they wrote this law to allow third parties to get in the middle of, and make money on, the OTA connection between broadcaster and end customer, without a retrans agreement of some kind.

If I were the judges here I'd be telling every Congressperson and Senator I know that they need to fix this law one way or the other. It would be really crappy if the courts had to decide which side gets to kill the other on this kind of technicality. Either that, or I'd be telling both sides' lawyers in conference that they really, really need to make a deal and settle this thing, or one of them isn't going to like what happens next.

 

[ahmerali]

Smeghead[/url]":1ifczl7v]

He even expresses concern that the court's decisions are hurting stock prices of major media companies.

Since when is it the court's job to look after the stock price of a company?

Existing companies' business models cget disrupted from time to time by new technologies. Too many of them use the courts as a means to prop up their existing empire rather than try to find new ways of making money.

Methinks Judge Chin has forgotten his place somewhat?

I actually think this is sort of a good thing in the long run. His dissent will at some level be seen to be predicated on this sort of notion, which other sensible judges will realize is a red herring. Makes it easier for them to poke holes in his dissenting opinion.

 

[y*!|$7v0Qn]

The majority's decision, which permits Aereo to retransmit television broadcasts without paying a fee, undermines this model. Indeed, the filing of this Court's decision on April 1, 2013 caused the share price for major media firms to drop because of the threat it posed to a vital source of their revenue.

And clearly, allowing these "horseless carriages" to move unescorted by a man waving a red flag will kill the train industry.

 

[metavirus]

joemullin[/url]":2m6jh55n] ... The PI motion in cases like this is a big deal, and it's hard for me to see a broadcaster victory after this. ...

With all due respect, there really is no basis on which to put much weight on a preliminary injunction ruling. Speaking as a lawyer, I can recall numerous cases that plaintiffs have lost at the preliminary injunction stage but later won on the merits. A preliminary injunction ruling carries no precedential value on the merits, and does not establish claim preclusion or issue preclusion on any of the claims or legal theories to be brought up at trial on the substance.

 

[z0phi3l]

Smeghead[/url]":1f133fdv]

He even expresses concern that the court's decisions are hurting stock prices of major media companies.

Since when is it the court's job to look after the stock price of a company?

Existing companies' business models cget disrupted from time to time by new technologies. Too many of them use the courts as a means to prop up their existing empire rather than try to find new ways of making money.

Methinks Judge Chin has forgotten his place somewhat?

He knows his place, just happens to be in the pockets of the big Media companies and not for the consumer, he should be replaced with a judge that has not sold his soul to Big Media

 

[saru-kun]

This should have been thrown out with prejudice on day 1. If Aereo is illegal, then so is ripping your own cds and steaming content around your own house. I can't believe it even got this far.

 

[UnnDunn]

This is going to Congress. And I have zero faith in Congress doing the right thing. All the broadcasters have to do is threaten a bunch of jobs in a few key states, and they'll get their bill that makes Aereo illegal.

 

[Pit Spawn]

So let me get this straight.

Company A is paid to put an antenna on consumers house, hooked up via coax - this is ok.

Company B is paid to keep and maintain the clients antenna, hooked up via Ethernet - this is bad?

Assuming they are not cutting out advertisements, this broadens the broadcaster's viewerbase by providing access to those without ability or desire to put up an antenna of their own. How is this anything but good for the broadcasters.

Also, I have long wondered why the broadcasters don't make their offering available online along the lines of hulu.

 

[Yhbv24]

He even expresses concern that the court's decisions are hurting stock prices of major media companies.

And? Neither the law nor competition cares about stock prices. If they want to increase the value of shares, then learn to compete and come up with innovative ways to distribute media and make money. Otherwise, fuck off, and good riddance.

 

[arkiel]

Judicial fallacy #10: if your reasoning centers around concern for a particular business model, you're bad at your job.

 

[MyDogHasFleas]

The preliminary injunction issue is actually mentioned, but it was added in the editing process a few minutes after publication, so you may not have seen it if you read it immediately. Sorry about that.

Yes I see that now, down towards the end of the story. You are correct that when I first read it it wasn't there.

Having said that, I don't think the headline or the text of the story is misleading at all. I mentioned Aereo's other cases and said "the fight isn't over" right in the deck, up top. The PI motion in cases like this is a big deal, and it's hard for me to see a broadcaster victory after this.

Really? The headline isn't misleading? "Broadcasters lose final appeal to take down Aereo"? When what you mean is "Broadcasters lose appeal for preliminary injunction to take down Aereo"? They can still, and very well might, "take down Aereo" at trial. The headline implies strongly it's all over.

You are correct that the text, with the addition of the PI statement, is not misleading. I retract my "ignorant, didn't do research, or is doing false narrative" statement, sorry about that.

The broadcasters made two separate appeals, with two separate arguments, to get what they wanted—which was to have Aereo shut off, immediately. Their bid to shut down Aereo right now really has been lost, in a way that's very final. The story & headline are accurate.

I think that's a matter of opinion. I think no one on either side thinks it's over. There's still a trial to be had.

My opinion is that so far it's all just skirmishes, with the intent of feeling out the other side, and putting pressure to bear. I think either side would be OK with a compromise settlement, and all they are really trying to do is skew the deal in their favor by throwing these legal grenades back and forth. I think that if you actually see it go to a serious trial, it will mean that they could not compromise, and they've decided to go "all in".

 

[willdude]

Chin doesn't see a reason why Aereo should be treated differently just because it uses many antennas, rather than one.

Indeed, there is no difference between Aereo and those other services at all, if you just ignore the differences.

 

[y*!|$7v0Qn]

willdude[/url]":ha4tfnyy]

Chin doesn't see a reason why Aereo should be treated differently just because it uses many antennas, rather than one.

I feel the same way. They should be allowed to use one antenna.

 

[willdude]

CQLanik[/url]":15a96sj8]

willdude[/url]":15a96sj8]

Chin doesn't see a reason why Aereo should be treated differently just because it uses many antennas, rather than one.

I feel the same way. They should be allowed to use one antenna.

Agreed... so long as someone's in the geographical area where they can receive the signal for free, it seems to make no difference to the broadcasters' coffers *how* they go about receiving that signal. But that's the ol' logic and common sense talking, and that's got no place 'round these here parts.

 

[IrishMonkee]

Finally, Chin says the court is being inconsistent in how it treats TV-over-Internet startups.

I find that funny considering the way the broadcasters & their association treat TV-over-Internet startups. What's that golden rule again, ah yes, do to others as you would have them do to you.

 

[Sunnyape]

Aside from the legal arguments over the validity of the re-transmission of the signal, is there any documented evidence that those tiny things Aereo claims are aerials are capable of receiving the signals.

How does a short, fixed length piece of what looks to be metal, receive TV signals whose wavelengths are much larger and vary in frequency?

And why is this array of tiny antennas always shown inside a server room? That's the worst place you'd want to put an antenna.

Even the smallest, hand-held TVs have some form of dipole or beam antenna that is folded on itself or wrapped around the case to still have the effective length.

Little bits of metal soldered to a board in staggered lines does not an antenna make.... or can someone enlighten me to the contrary.

 

[Akemi]

z0phi3l[/url]":b5h51qfa]

Smeghead[/url]":b5h51qfa]

He even expresses concern that the court's decisions are hurting stock prices of major media companies.

Since when is it the court's job to look after the stock price of a company?

Existing companies' business models cget disrupted from time to time by new technologies. Too many of them use the courts as a means to prop up their existing empire rather than try to find new ways of making money.

Methinks Judge Chin has forgotten his place somewhat?

He knows his place, just happens to be in the pockets of the big Media companies and not for the consumer, he should be replaced with a judge that has not sold his soul to Big Media

His place should be for neither, only the law.

 

[Boskone]

Frankly, judges need to start remembering that their job is not to enforce morals, business models, or anything else that isn't the law as written. Juries are there for the rest.

That said, I almost agree with Chin, with a few changed words:

Finally, Chin says the court is being inconsistent in how it treats TV-over-Internet startups. In a case involving ivi TV, the 2nd Circuit found that broadcasting TV-over-Internet did constitute a public performance. Chin doesn't see a reason why Aereo should be treated differently just because it uses many antennas, rather than one.

I, for one, don't see why having a single antenna to rebroadcast free, OTA broadcasts should be any less legal than doing so with a bunch of little ones. The fact that such a relatively negligeable difference can matter is a staggeringly sad statement about our laws.

 

[rcxb]

Boskone[/url]":10c4givo]I, for one, don't see why having a single antenna to rebroadcast free, OTA broadcasts should be any less legal than doing so with a bunch of little ones. The fact that such a relatively negligeable difference can matter is a staggeringly sad statement about our laws.

The comment is a staggeringly sad statement about your knowledge of our laws.

Infinitely finer distinctions are drawn in all manner of other laws about many other subjects. Shared versus dedicated XYZ is a pretty clear and unambiguous distinction. And the reason one is legal while the other isn't (without paying retransmission fees), is because the government wrote a law saying the former isn't legal, but couldn't outlaw the later, as it would be too broad and necessarily criminalize owning an antenna. That's why I'm hopeful about Aereo's chances... Any laws written would have to be so specific that Aereo could find a workaround, or would be so broad that a number of legitimate businesses would be rendered illegal.

 

[rcxb]

yankinwaoz[/url]":khr1lzec]I think our 2nd amendment, the right to bear arms, will make the job of enforcing OTA TV fees the world's most dangerous job.

We haven't lost an IRS agent in quite a while...

 

[rcxb]

Pit Spawn[/url]":3uibhrsw]Company B is paid to keep and maintain the clients antenna, hooked up via Ethernet - this is bad?

It's not "bad", it's just something fundamentally different, so the rules governing their operation are different, and happens to be much more expensive...

Also, I have long wondered why the broadcasters don't make their offering available online along the lines of hulu.

They do... The major broadcasters own Hulu.

 

[Brainstorms]

Smeghead[/url]":j64ogqk9]

He even expresses concern that the court's decisions are hurting stock prices of major media companies.

Since when is it the court's job to look after the stock price of a company?

Existing companies' business models cget disrupted from time to time by new technologies. Too many of them use the courts as a means to prop up their existing empire rather than try to find new ways of making money.

Methinks Judge Chin has forgotten his place somewhat?

Naw, he's just joined the Congress and the Executive Branch in being "bought" by industry.

If the rest of the Judicial Branch follows his example, then we're totally f'd with no hope left.

 

[hpsgrad]

Sunnyape[/url]":373l5doq]Aside from the legal arguments over the validity of the re-transmission of the signal, is there any documented evidence that those tiny things Aereo claims are aerials are capable of receiving the signals.

How does a short, fixed length piece of what looks to be metal, receive TV signals whose wavelengths are much larger and vary in frequency?

It's fairly common to see antennas with elements shorter than one wavelength, in a wide variety of applications. The price paid for an extremely compact antenna is generally in sensitivity. Aereo's strategy is to put their small antennas in direct line of sight of a powerful TV transmitter, so that the low sensitivity is made irrelevant. Pictures on their website show the location of their antenna arrays WRT the transmitter location in NY. They're pretty close.

And why is this array of tiny antennas always shown inside a server room? That's the worst place you'd want to put an antenna.

Again going from the pictures on their website, the antennas are rack-mounted in what amounts to an office, right next to the window. The rest of the gear is in a server room elsewhere.

Even the smallest, hand-held TVs have some form of dipole or beam antenna that is folded on itself or wrapped around the case to still have the effective length.

Little bits of metal soldered to a board in staggered lines does not an antenna make.... or can someone enlighten me to the contrary.

With a bit of work, you make almost anything conductive into a practical (if not necessarily efficient) antenna. The amateur radio community is full of stories of people who clip the output leads of a transmitter onto bedframes, gutters, bicycle wheels, fences (of varying types), and all manner of other things. Small bits of metal soldered to a board can indeed be antennas.

With the right software (some implementation of the Numerical Electrodynamics Code, for example), it should be fairly straightforward to model the performance of the antennas that Aereo is using. I have not done any simulation, but I suspect that the antenna performance is adequate to their task. I believe this, among other reasons, because if they were lying about using many antennas, then they're committing not only copyright infringement, but also fraud. The particular fraud in question should be easily detected, given the state of the art of antenna design. Since nobody's attempting to argue this aspect in court, I'm assuming that it's at least technically possible.

 

[Dputiger]

yankinwaoz[/url]":w00xqz68]How does any of this threaten the Free Over the Air pact that was implemented at the dawn of TV?

Do you really think we are going to end up like Britain with annual TV license fees, and enforcement vans detecting illegal televisions and kicking in doors? I think our 2nd amendment, the right to bear arms, will make the job of enforcing OTA TV fees the world's most dangerous job. God knows you couldn't pay me enough to get shot trying to assure that CBS gets their $5 a month.

The airwaves are a public resource. We allocated a chunk of the spectrum for FREE TV broadcast. If a network wants to go private, then then can do so over the Internet, or cable, or satellite. OTA is no longer the only path to our TV's.

Back up and think about what you just said.

You would threaten and possibly shoot (or at the very least, condone the shooting of) an unarmed man over $5? Because that's what you've just implied. The only way for the 2nd Amendment to do the "job" of making enforcing fees dangerous is through the use or implied use of violence. Humans being what we are, someone's finger is going to slip.

That's pretty disturbing, man. If TimeWarner sends over a Viking raid to loot and pillage your home, maybe you'd be justified. Otherwise, I don't think so.

 

[steell]

rcxb[/url]":14fe31ha]

yankinwaoz[/url]":14fe31ha]I think our 2nd amendment, the right to bear arms, will make the job of enforcing OTA TV fees the world's most dangerous job.

We haven't lost an IRS agent in quite a while...

When was the last time an IRS Agent showed up at your home?

 

[Spacepower]

Pit Spawn[/url]":tip37m43]So let me get this straight.

Company A is paid to put an antenna on consumers house, hooked up via coax - this is ok.

Company B is paid to keep and maintain the clients antenna, hooked up via Ethernet - this is bad?

Assuming they are not cutting out advertisements, this broadens the broadcaster's viewerbase by providing access to those without ability or desire to put up an antenna of their own. How is this anything but good for the broadcasters.

Also, I have long wondered why the broadcasters don't make their offering available online along the lines of hulu.

Just to add to your comment, the first market they entered was NYC where most people live in appartments they rent, where they can't install an external antenna. Depending where they live in NYC, they might get flakey OTA reception. So getting OTA signals over IP is much cheaper than paying for cable. As long as the commercials aren't cut out from the original broadcast, I see no problem with streaming.

 

[sporkme]

Sunnyape[/url]":259oio9e]

How does a short, fixed length piece of what looks to be metal, receive TV signals whose wavelengths are much larger and vary in frequency?

I'd posit the opposite... How many full-wave antennas for TV or radio (especially AM) have you seen in consumer products?

Also bear in mind that most digital TV is now in the UHF band rather than VHF (with a few exceptions).

 

[jimCA]

So, if I read this right, the broadcasters are sending the following message:

"Dear advertisers on whom we rely for the bulk of our revenue:

We are attempting to limit the number of viewers who will get to view your commercials.

Sincerely,
Companies so used to monopoly we look gift horses in the mouth"