Judges Realize Aereo's Setup Is Insane Technologically... But May Get The Wrong Message Out Of It

from the that's-unfortunate dept

Suppose I could offer you a choice of two technologies for watching TV online. Behind Door Number One sits a free-to-watch service that uses off-the-shelf technology and that buffers just enough of each show to put the live stream on the Internet. Behind Door Number Two lies a subscription service that requires custom-designed hardware and makes dozens of copies of each show. Which sounds easier to build—and to use? More importantly, which is more likely to be legal?



If you went with Door Number One, then you are a sane person, untainted by the depravity of modern copyright law. But you are also wrong. The company behind Door Number One, iCraveTV, was enjoined out of existence a decade ago. The company behind Door Number Two, Aereo, just survived its first round in court and is still going strong.

The judges also questioned Hosp on why Aereo needed to have all those antennas. "Why not one? Is there a technological reason? Any legitimate business reason?"

One judge also observed, "You say your model is built around Cablevision. Isn't that like organizing your business affairs to avoid taxes?"

"The plaintiffs say it is a bad thing to follow the law," he said. "I believe the 2nd Circuit got it right in attempting to strike the right balance between public and private performances that lawmakers wanted."

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A few months ago, we wrote about law professor James Grimmelmann's awesome article about how copyright law for media streaming was completely insane from a technological standpoint:The issue, of course, is a series of lawsuits that have really only displayed how copyright law written for legacy technologies has no idea how to deal with streaming media. After each one, companies try to figure out, which seems like a noble goal. However, because of all the ridiculous specifics in rulings where judges contort themselves to come up with a way to fit a ruling into their preconceived notions of what's legal and what's not, the end result is that if you want to design a legal service, you have to set up a truly twisted and confusing setup... like Aereo's.That issue has come up in the appeal on the district court Aereo decision . The TV networks are trying to convince the appeals court that the lower court was wrong. There was a lot of focus on trying to distinguish Aereo from the same court's ruling in the Cablevision case four years ago, which said that a remote DVR offered by Cablevision was legal. However, apparently there was an interesting exchange in which the judges seemed to realize that Aereo's setup wasAereo's lawyer, David Hosp, admitted that the reasons were legal. This is the point at which peoplerealize that this demonstrates one of the many ways that copyright law is broken, because it forces companies to go through all sorts of convoluted technological decisions to deliver thethat could be delivered much more easily and efficiently otherwise. Instead, the judges seemed concerned in, that if the decisions were done for a legal reason it was somehow a sign of ill-intent:That, of course, is a ridiculous analogy -- and thankfully Hosp responded correctly: following what the court said was legal in earlier cases isn't about "avoiding" anything, it's aboutAnyway, it wouldn't be surprising to see the court overturn the district court ruling, no matter how ridiculous a result that would be. It really feels like a lot of these cases are judged based on a judge deciding what he "feels" should be legal, and then trying to work in a justification later.

Filed Under: broken, copyright

Companies: aereo