# Supremes rule against Aereo; 6-3



## ohmark (May 22, 2007)

http://www.nytimes.com/2014/06/26/b....html?emc=edit_na_20140625&nlid=46679617&_r=0


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## aadam101 (Jul 15, 2002)

Oh no......


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## buscuitboy (Aug 8, 2005)

yea, too bad to see this. Looks like Comcast and other big networks have once again triumphed over the little guy. unfortunate & I tend to think this spells the end of Aereo. I briefly had it in the Atlanta area and liked it. Was waiting to see what happened here to maybe consider using it as an alternative to cable, but looks like that won't happen at this point.


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## mcf57 (Oct 19, 2012)

Next upthe unfortunate approval of the Comcast/TW merger  :down:


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## aadam101 (Jul 15, 2002)

This is just a win for piracy. The same people who use Aereo (cord cutters) are not going to run out and sign up for cable. They will either pirate the content or they just won't watch at all. I'm glad the networks are patting themselves on the back for a job well done. Fools.


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## BobCamp1 (May 15, 2002)

The Court found that there is hardly any difference between a CATV provider and Aereo:

1. Aereo just doesn't provide the equipment for its customers, it's a service. Therefore they are transmitting (a.k.a. "performing").
2. They are retransmitting copyrighted material to the public, albeit in a unique way.

What's worse, the dissenting opinion isn't any better. It would make Aereo itself legal (like a copy machine) but anybody who uses it is violating copyright law since they can only copy copyrighted material (unlike a copy machine). I believe all it would take is a search warrant to reveal all of Aereo's subscribers and what they recorded (a copy machine leaves no record), and then they could be sued individually by the content owners. People would cancel Aereo in droves and it would go out of business.

The decision is intentionally narrow enough to avoid tackling other problems. The storage of the recorded shows (whether at home or in the cloud) was specifically not addressed, so Tivo is safe for now. And the "public" was defined as a substantial number of people, more than a family, so technologies like Slingbox are OK for now.


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## Dan203 (Apr 17, 2000)

BobCamp1 said:


> What's worse, the dissenting opinion isn't any better. It would make Aereo itself legal (like a copy machine) but anybody who uses it is violating copyright law since they can only copy copyrighted material (unlike a copy machine). I believe all it would take is a search warrant to reveal all of Aereo's subscribers and what they recorded (a copy machine leaves no record), and then they could be sued individually by the content owners. People would cancel Aereo in droves and it would go out of business.


Copying of content broadcast using public airwaves is completely legal, that's why all broadcast channels are required to be flagged as "copy freely" even on cable systems that protect everything else. You're just not allowed to do a public performance or resell the content. So as long as you were only using the content for private, personal, viewing there would be nothing for the content owners to sue you over.

What's weird about this whole case is that what they're doing is absolutely no different then what a user can do right now with a TiVo and a Stream. With a Roamio Basic connected to an antenna and a TiVo Stream you could record anything you wanted and then watch it, or download it, remotely whenever you wanted. The only difference is that with Aereo the antenna, DVR and transcoder are all located at company offices instead of in your home.


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## tarheelblue32 (Jan 13, 2014)

BobCamp1 said:


> What's worse, the dissenting opinion isn't any better. It would make Aereo itself legal (like a copy machine) but anybody who uses it is violating copyright law since they can only copy copyrighted material (unlike a copy machine). I believe all it would take is a search warrant to reveal all of Aereo's subscribers and what they recorded (a copy machine leaves no record), and then they could be sued individually by the content owners. People would cancel Aereo in droves and it would go out of business.


Respectfully, I don't think you really understood the dissent.

Scalia's dissent says that for a copyright infringement to take place in this case, Aereo must be actively engaging in putting on a "public performance" of copyrighted material, but because the end-user is the one actively selecting the content, Aereo can't be the volitional actor conducting a public "performance". And since the end-user is viewing the content it private, that "performance" is not "public". So, whatever Aereo is doing is "public", but not a "performance"; and what Aereo's customers are doing might be a "performance", but it's certainly not "public". So since no single actor is conducting a "public performance" as required by the copyright statute, nobody is breaking any copyright laws.

He further distinguishes what Aereo is doing from video-on-demand providers like Netflix by saying that what Netflix does is an active "performance" because Netflix selects what content will be made available to their customers at a given time, but Aereo just passively allows customers to select whatever content is being passively received by their antennas at any given time and place.


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## aadam101 (Jul 15, 2002)

Dan203 said:


> What's weird about this whole case is that what they're doing is absolutely no different then what a user can do right now with a TiVo and a Stream. With a Roamio Basic connected to an antenna and a TiVo Stream you could record anything you wanted and then watch it, or download it, remotely whenever you wanted. The only difference is that with Aereo the antenna, DVR and transcoder are all located at company offices instead of in your home.


This is exactly what I do and I pay Tivo for the service that allows me to do this. The only difference is the location of the antenna. If I moved the antenna to the property next door and paid the owner it would be the exact same thing as Aereo and it would be legal? SCOTUS made a bad decision.

Here is the statement to subscribers from Aereo.



> STATEMENT FROM AEREO CEO AND FOUNDER CHET KANOJIA ON UNITED STATES SUPREME COURT DECISION
> 
> Court decision denies consumers the ability to use a cloud-based antenna to access free over-the-air television, further eliminating choice and competition in the television marketplace
> 
> ...


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## unitron (Apr 28, 2006)

Here I posit that a whole new can of worms may have just been opened:

http://www.tivocommunity.com/tivo-vb/showthread.php?t=518669


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## BobCamp1 (May 15, 2002)

tarheelblue32 said:


> Respectfully, I don't think you really understood the dissent.
> 
> Scalia's dissent says that for a copyright infringement to take place in this case, Aereo must be actively engaging in putting on a "public performance" of copyrighted material, but because the end-user is the one actively selecting the content, Aereo can't be the volitional actor conducting a public "performance". And since the end-user is viewing the content it private, that "performance" is not "public". So, whatever Aereo is doing is "public", but not a "performance"; and what Aereo's customers are doing might be a "performance", but it's certainly not "public". So since no single actor is conducting a "public performance" as required by the copyright statute, nobody is breaking any copyright laws.
> 
> He further distinguishes what Aereo is doing from video-on-demand providers like Netflix by saying that what Netflix does is an active "performance" because Netflix selects what content will be made available to their customers at a given time, but Aereo just passively allows customers to select whatever content is being passively received by their antennas at any given time and place.


I reread the dissent again. All the Supreme Court did was determine if Aereo was directly liable for performance infringement, not secondarily liable. It also didn't determine if Aereo was primarily or secondarily liable for reproduction infringement. The dissent just said Aereo was not directly liable for performance infringement. It also admits that it might be a loophole, and what Aereo is doing should be considered illegal somehow, it's just a difference of opinion as to exactly how. As Groskter and Napster will tell you, if people primarily use your service to make illegal copies, you can can be held secondarily liable. The Court did not address that. It also did not address if people were violating the law by using the Aereo service. Which is why end customers would get sued.


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## tarheelblue32 (Jan 13, 2014)

BobCamp1 said:


> I reread the dissent again. All the Supreme Court did was determine if Aereo was directly liable for performance infringement, not secondarily liable. It also didn't determine if Aereo was primarily or secondarily liable for reproduction infringement. The dissent just said Aereo was not directly liable for performance infringement. It also admits that it might be a loophole, and what Aereo is doing should be considered illegal somehow, it's just a difference of opinion as to exactly how. As Groskter and Napster will tell you, if people primarily use your service to make illegal copies, you can can be held secondarily liable. The Court did not address that. It also did not address if people were violating the law by using the Aereo service. Which is why end customers would get sued.


Yes, since the majority opinion found them directly liable, they never got to making a determination about secondary liability, so the dissent did not bother to address that question either. The dissent just states they should not be held directly liable for the reasons I stated earlier.


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## Bigg (Oct 31, 2003)

BobCamp1 said:


> The Court found that there is hardly any difference between a CATV provider and Aereo:
> 
> 1. Aereo just doesn't provide the equipment for its customers, it's a service. Therefore they are transmitting (a.k.a. "performing").
> 2. They are retransmitting copyrighted material to the public, albeit in a unique way.


Yeah, it sucks that they don't understand (or chose to ignore and serve their corporate overlords) the basic and obvious difference between a massive QAM plant and an individual stream kept separate from others on Aereo's servers.

The law is clear, and Aereo's service complied 100% with the law, yet SCOTUS chose to ignore the law and legislate from the bench with some whacky interpretation of what Congress meant to serve their corporate overlords, not what they actually wrote.

It also sucks that Aereo is gone now. Even though it has little to do with TiVo, and I think it was a kind of stupid service, since all the good content is on cable anyways, the fact that it was there was a good thing for the market.

It also sucks that the networks are so incredibly bone-headed. Not only do they look like huge bullies here, but suing Aereo is counter-productive to their goal of having more viewers, and thus making more money, yet they are too stupid to grasp this basic concept.


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## Dan203 (Apr 17, 2000)

Networks have turned a corner where they are now more concerned about the money they make from redistribution, secondary sales, etc... then what they get from advertisers. And perhaps that's a wise decision on their part. With the proliferation of DVRs and OTT services that offer commercial free versions of their shows we are likely approaching a point where advertising dollars will no longer be their biggest source of revenue. The business is changing and they're trying to make sure they can still make their billions in profits when it gets to a point where no one watches commercials any more.


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## Diana Collins (Aug 21, 2002)

Bigg said:


> Yeah, it sucks that they don't understand (or chose to ignore and serve their corporate overlords) the basic and obvious difference between a massive QAM plant and an individual stream kept separate from others on Aereo's servers...


This difference was not the point of law in the case. It was about copyrights and what did or did not constitute infringement.



Bigg said:


> ...The law is clear, and Aereo's service complied 100% with the law, yet SCOTUS chose to ignore the law and legislate from the bench with some whacky interpretation of what Congress meant to serve their corporate overlords, not what they actually wrote...


The law is most certainly clear...you can't do ANYTHING with a copyrighted broadcast. Period. The courts, over that past 30 or so years, have slowly eroded that clarity of the law by carving out exceptions. These exceptions were grouped under the banner of "fair use." What this case really revolved around was whether or not what Aereo was doing should be included as yet another exception.



Bigg said:


> ...It also sucks that Aereo is gone now. Even though it has little to do with TiVo, and I think it was a kind of stupid service, since all the good content is on cable anyways, the fact that it was there was a good thing for the market.
> 
> It also sucks that the networks are so incredibly bone-headed. Not only do they look like huge bullies here, but suing Aereo is counter-productive to their goal of having more viewers, and thus making more money, yet they are too stupid to grasp this basic concept.


Aereo was a dumb idea that was never going to be profitable. The broadcasters did not care one whit about Aereo - they were worried that Comcast, DirecTV, Dish, TWC, Cablevision, etc. would do the same thing.

They are not being boneheaded. As Dan points out above, the proliferation of DVRs and commercial skipping has steadily eroded the revenue they make from advertisers. Retransmission fees (basically a subscription fee for broadcast TV) replaces that revenue. The "contract" between the public and the broadcasters was that the broadcasters get use of the airwaves (they pay for that privledge) and they deliver news and entertainment to the public for free. In return for it being free, the broadcasters had the right to sell advertising embedded in the programs. The public broke that contract when they started buying and using tools that allowed them to skip the commercials. The broadcasters have responded the only way they could.


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## Bigg (Oct 31, 2003)

Dan203 said:


> Networks have turned a corner where they are now more concerned about the money they make from redistribution, secondary sales, etc... then what they get from advertisers. And perhaps that's a wise decision on their part. With the proliferation of DVRs and OTT services that offer commercial free versions of their shows we are likely approaching a point where advertising dollars will no longer be their biggest source of revenue. The business is changing and they're trying to make sure they can still make their billions in profits when it gets to a point where no one watches commercials any more.


The problem is, if that's their business model, then OTA doesn't fit into that mold. That is, in part, why they have moved a lot of shows off to cable, but if they really don't want to do OTA, maybe they need to get out, turn into cable networks and sell off the OTA licenses to local stations who will do their own programming or syndicated programming...



Diana Collins said:


> This difference was not the point of law in the case. It was about copyrights and what did or did not constitute infringement.


Aereo's service is 100% legal to the letter of the law. The SCOTUS legislated from the bench. They should have left that to Congress.



> The law is most certainly clear...you can't do ANYTHING with a copyrighted broadcast. Period. The courts, over that past 30 or so years, have slowly eroded that clarity of the law by carving out exceptions. These exceptions were grouped under the banner of "fair use." What this case really revolved around was whether or not what Aereo was doing should be included as yet another exception.


Anything like record it to a hard drive and play it back? If you don't allow that, the TiVo Roamio is illegal.



> Aereo was a dumb idea that was never going to be profitable. The broadcasters did not care one whit about Aereo - they were worried that Comcast, DirecTV, Dish, TWC, Cablevision, etc. would do the same thing.


Which is ridiculous because it would be absurdly costly if it's even possible at all. It's more practical to roll a truck to everyone's house and set up an OTA antenna and issue new boxes with OTA tuners than it is to set up some Aereo-like kludge that would require insane amounts of bandwidth.



> They are not being boneheaded. As Dan points out above, the proliferation of DVRs and commercial skipping has steadily eroded the revenue they make from advertisers. Retransmission fees (basically a subscription fee for broadcast TV) replaces that revenue. The "contract" between the public and the broadcasters was that the broadcasters get use of the airwaves (they pay for that privledge) and they deliver news and entertainment to the public for free. In return for it being free, the broadcasters had the right to sell advertising embedded in the programs. The public broke that contract when they started buying and using tools that allowed them to skip the commercials. The broadcasters have responded the only way they could.


They absolutely are being boneheaded. They are confused old dinosaurs who just lash out at anything they view as a threat.

If Congress had any backbone, they would give the cable/IPTV/satellite cos the right to re-distribute OTA signals for free as long as they don't modify them other than for re-encoding. The concept of retrans fees for something that should be free is ABSURD.

The public never broke that contract. Not only do a lot of people still watch live TV, but DVRs are the consumer's right to have, and consumers have had the technology to time-shift and commercial skip since the 80's in one form or another. Sure, the DVR made it more convenient in 1999, but it has been possible for a long, long time.


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## Rob Helmerichs (Oct 17, 2000)

Bigg said:


> If Congress had any backbone, they would give the cable/IPTV/satellite cos the right to re-distribute OTA signals for free as long as they don't modify them other than for re-encoding. The concept of retrans fees for something that should be free is ABSURD.


I absolutely agree, as long as the people who are doing the retransmitting are not allowed to profit in any way from the work and expense the networks performed to create and distribute the material. As long as they give it out to anybody who wants it at no charge.


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## unitron (Apr 28, 2006)

BobCamp1 said:


> I reread the dissent again. All the Supreme Court did was determine if Aereo was directly liable for performance infringement, not secondarily liable. It also didn't determine if Aereo was primarily or secondarily liable for reproduction infringement. The dissent just said Aereo was not directly liable for performance infringement. * It also admits that it might be a loophole, and what Aereo is doing should be considered illegal somehow, it's just a difference of opinion as to exactly how. * As Groskter and Napster will tell you, if people primarily use your service to make illegal copies, you can can be held secondarily liable. The Court did not address that. It also did not address if people were violating the law by using the Aereo service. Which is why end customers would get sued.


Don't you just love it when the court delivers a clear, concise, exact ruling on the law?

(too bad this wasn't one of those times)


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## unitron (Apr 28, 2006)

Diana Collins said:


> This difference was not the point of law in the case. It was about copyrights and what did or did not constitute infringement.
> 
> The law is most certainly clear...you can't do ANYTHING with a copyrighted broadcast. Period. The courts, over that past 30 or so years, have slowly eroded that clarity of the law by carving out exceptions. These exceptions were grouped under the banner of "fair use." What this case really revolved around was whether or not what Aereo was doing should be included as yet another exception.
> 
> ...


So back in the '50s, anyone who got up and went to the bathroom when the commercial came on should have been sent to Gitmo?

How about somebody who bought a copy of Life magazine and turned past an ad before reading it (since publications usually got the bulk of their income from ad sales and not subscription and newsstand sales)?

Oh, while broadcasters paid some FCC fees and such, it was never near the value of the license, or they'd never have had to maintain a public file showing all the stuff they did to prove that they were operating in the "public interest".

And some licensees, like what eventually turned into PBS affiliates, didn't sell ad time, so that "contract" was far from universal.

There's another way broadcasters could have responded--the way makers of buggies and buggy whips did when automobiles came along, recognize that conditions have changed and either adapt or die.

If they don't want that broadcast license to use the airwaves that belong to the public anymore, I'm sure someone else does.

Free market capitalism ain't always pretty.


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## Diana Collins (Aug 21, 2002)

One again, just because the result is the same does not mean that any and all ways of getting there are equally legal.

There is a HUGE difference in the eyes of the court between someone walking out of the room when a commercial comes on, and some one selling a device that allows a person to literally skip over commercials as if they were not there. It took the courts (lower courts in this case...no one ever challenged the lower court rulings) to say that DVRs were covered by the same "fair use" doctrine applied to VCRs. As recently as last year Dish Network was taken to court for the commercial skipping technology built into their Hoppers...it did the same thing you can do with your TiVo, just without a button press. Cablevision was also taken to court recently over the idea of cloud based DVRs. Again, the courts said that "fair use" extended to cloud DVRs. But until they ruled, under copyright law alone, cloud DVRs are unlawful.

Just because the service Aereo provided acheived the same result as someone erecting their own antenna and feeding the signal into a local DVR does not make the two equal before the law. For one thing, the Aereo solution involved MANY additional data processing steps between the antenna and the screen. For another, they didn't sell hardware, they sold a service. Since what they were doing was not absolutely identical to any existing fair use based exception, it required the opinion of the courts to either extend such an exemption or not. Lower courts ruled both ways, so it landed in the Supreme Court and they rendered a decision. Some will think it a good decision, and others a bad one. 

But could everyone please stop saying that Aereo "complied with the letter of the law." They did not. They complied with a particular view of the permission granted by the broadcasters (namely that the transmission is licensed "for private home viewing and the material may not be republished, rebroadcast or redistributed in whole or part with out the express written permission" of the station). The case turned upon whether or not that license, or any existing "fair use" exemptions to the license, applied to Aereo's business. The SCOTUS decided that they did not, and also declined to extend a new exemption.


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## Bigg (Oct 31, 2003)

Rob Helmerichs said:


> I absolutely agree, as long as the people who are doing the retransmitting are not allowed to profit in any way from the work and expense the networks performed to create and distribute the material. As long as they give it out to anybody who wants it at no charge.


That's an interesting point, although then who pays for the cable plant? Maybe a lower fee for basic cable that is set up just as plant maintenance ($8/mo like Aereo?) and mandated Clear QAM would make more sense. That still wouldn't address services like FIOS or U-Verse, since they have additional equipment though...



Diana Collins said:


> One again, just because the result is the same does not mean that any and all ways of getting there are equally legal.
> 
> There is a HUGE difference in the eyes of the court between someone walking out of the room when a commercial comes on, and some one selling a device that allows a person to literally skip over commercials as if they were not there. It took the courts (lower courts in this case...no one ever challenged the lower court rulings) to say that DVRs were covered by the same "fair use" doctrine applied to VCRs. As recently as last year Dish Network was taken to court for the commercial skipping technology built into their Hoppers...it did the same thing you can do with your TiVo, just without a button press. Cablevision was also taken to court recently over the idea of cloud based DVRs. Again, the courts said that "fair use" extended to cloud DVRs. But until they ruled, under copyright law alone, cloud DVRs are unlawful.


Well it had to go to court, because someone challenged it. I can see a legitimate challenge to built-in commercial skipping technology, since that's quite a bit different from 30-second skip that you have to mash through (although probably everyone on this forum can mash through commercials in a matter of a few seconds with 30-second and 7-second back...). However, the concept of a DVR somehow being different from a VCR is just stupid. Some entity just challenged it, even though it's a ridiculous challenge.

For cloud DVRs, it gets really squirrely now because of Aereo. If SCOTUS had done the right thing and rulted Aereo legal, then it would all make sense. However, now we have the situation where Cablevision rolling out DCX3400's versus cloud DVR is the same thing in the eyes of the law, and yet a TiVo Roamio with an antenna is legal, while Aereo is not, which fundamentally makes absolutely no sense.



> Just because the service Aereo provided acheived the same result as someone erecting their own antenna and feeding the signal into a local DVR does not make the two equal before the law. For one thing, the Aereo solution involved MANY additional data processing steps between the antenna and the screen. For another, they didn't sell hardware, they sold a service. Since what they were doing was not absolutely identical to any existing fair use based exception, it required the opinion of the courts to either extend such an exemption or not. Lower courts ruled both ways, so it landed in the Supreme Court and they rendered a decision. Some will think it a good decision, and others a bad one.


The data processing part is irrelevant. Simple.TV and Tablo can do transcoding and other processing work as part of their recording. Cablevision is selling a service with Cloud DVR, and it is viewed legally the same way as buying a Roamio Pro with Lifetime and sticking a CableCard in it.



> But could everyone please stop saying that Aereo "complied with the letter of the law." They did not. They complied with a particular view of the permission granted by the broadcasters (namely that the transmission is licensed "for private home viewing and the material may not be republished, rebroadcast or redistributed in whole or part with out the express written permission" of the station). The case turned upon whether or not that license, or any existing "fair use" exemptions to the license, applied to Aereo's business. The SCOTUS decided that they did not, and also declined to extend a new exemption.


They absolutely did 100% comply with the letter of the law. The letter of the law wasn't what the original intent of the law was, but this should have required an act of Congress to change, not a decision by SCOTUS. Of course, in that aspect, Aereo was toast one way or another, as all of the corrupt Congress critters probably would have passed legislation to outlaw it if SCOTUS had ruled the correct way in regards to the legality of Aereo under current law.


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## lessd (Jan 23, 2005)

Bigg said:


> They absolutely did 100% comply with the letter of the law. The letter of the law wasn't what the original intent of the law was, but this should have required an act of Congress to change, not a decision by SCOTUS. Of course, in that aspect, Aereo was toast one way or another, as all of the corrupt Congress critters probably would have passed legislation to outlaw it if SCOTUS had ruled the correct way in regards to the legality of Aereo under current law.


You should at least say in* your *option as you are not the great arbitrator of all things that are *absolutely did 100% comply with the letter of the law *. We all have options on this SC decision, some for, some against, but we have to respect the SC or our country would go down the tubes. 2+2 will be 4 in all cases but the law is never that easy to predict some of the time.


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## Bigg (Oct 31, 2003)

lessd said:


> You should at least say in* your *option as you are not the great arbitrator of all things that are *absolutely did 100% comply with the letter of the law *. We all have options on this SC decision, some for, some against, but we have to respect the SC or our country would go down the tubes. 2+2 will be 4 in all cases but the law is never that easy to predict some of the time.


No. Based on the letter of the law, not my opinion, Aereo 100% complied with the law. SCOTUS decided to legislate from the bench based on what they thought Congress' intent was.

However, it does get messy, as some places where SCOTUS has been accused of legislating from the bench, but aren't as clear have had much better outcomes like the enormously positive outcome of Roe v. Wade. However, that case is not at all a clear case of legislating from the bench like the Aereo case is. And it's a heck of a lot more important than watching TV a certain way...


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## Dan203 (Apr 17, 2000)

Bigg said:


> The problem is, if that's their business model, then OTA doesn't fit into that mold. That is, in part, why they have moved a lot of shows off to cable, but if they really don't want to do OTA, maybe they need to get out, turn into cable networks and sell off the OTA licenses to local stations who will do their own programming or syndicated programming...


Oh they're going to milk that cow until it runs dry, then they'll ditch OTA. We're witnessing the beginning of the end of quality ad supported TV. In another decade or so the only thing left on broadcast will be syndication and reality TV.


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## Diana Collins (Aug 21, 2002)

Bigg said:


> No. Based on the letter of the law, not my opinion, Aereo 100% complied with the law...


You are simply wrong.

There is no law with which they could be in 100% compliance. If you think there is, please quote it.

The broadcasters own the rights to their broadcasts, and they include the disclaimer I noted above where they grant a very limited and specific use case under which they offer their content for your viewing. ANY other use, including but not limited to, retransmission (which Aereo was doing), recording (which Aereo was sometimes doing), editing or altering in any way are all PROHIBITED. Period. To do ANYTHING except feed the signal directly from an antenna through a piece of wire and deliver that original and unaltered signal to a tuner on a TV set requires either the permission of the copyright holder, or a legal opinion from the court that the copyright does not, if fact, prohibit the activity.

VCRs and DVRs only exist because of court challenges that resulted in specific, narrow, exemptions being granted by the court that made their use legal. This is the legal reality. Whether that fits with your view of reasonable or not is up to you and is your opinion. You have every right to your opinion, but I'm sorry, your opinion does not become a fact just because you believe it strongly and declare it to be a fact.


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## lessd (Jan 23, 2005)

Diana Collins said:


> You are simply wrong.
> 
> There is no law with which they could be in 100% compliance. If you think there is, please quote it.
> 
> ...


*Thank you*;:up: as Brigg is one tough person with turning his opinions into absolute legal facts.


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## unitron (Apr 28, 2006)

Diana Collins said:


> One again, just because the result is the same does not mean that any and all ways of getting there are equally legal.
> 
> There is a HUGE difference in the eyes of the court between someone walking out of the room when a commercial comes on, and some one selling a device that allows a person to literally skip over commercials as if they were not there. It took the courts (lower courts in this case...no one ever challenged the lower court rulings) to say that DVRs were covered by the same "fair use" doctrine applied to VCRs. As recently as last year Dish Network was taken to court for the commercial skipping technology built into their Hoppers...it did the same thing you can do with your TiVo, just without a button press. Cablevision was also taken to court recently over the idea of cloud based DVRs. Again, the courts said that "fair use" extended to cloud DVRs. But until they ruled, under copyright law alone, cloud DVRs are unlawful.
> 
> ...


There is no legal or moral obligation to watch the commercials.

There is no legal or moral obligation to watch the commercials.

There is no legal or moral obligation to watch the commercials.

And I say that as someone who was paid to create and perform commercials and in many cases enjoyed doing so.

There is no legal or moral obligation to watch the commercials.


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## Diana Collins (Aug 21, 2002)

unitron said:


> There is no legal or moral obligation to watch the commercials...


No, and no one is saying there is. The issue of commercial skipping is not in question in the Aereo case. Retransmission was. In fact, one way of looking at the Aereo case is that the Court needed to clarify exactly what constituted retransmission. The Court decided that what Aereo was doing was, indeed, retransmission. The technology used to do the retransmission was not at issue.

While armchair attorneys may state (sometimes as fact) their opinion that the location of the antenna and tuner and the fact that the viewers are paying someone (Aereo) to maintain a centralized receive facility and then use internet based sessions to retransmit the content from the tuner output to their TV, phone, tablet or PC made this somehow not constitute a retransmission, the Court did not agree. They saw no difference between what Aereo was doing and what Dish Network tried to do when they first started delivering local broadcast affiliates via satellite. In both cases, the court ruled that this is retransmission, the details of how the data gets from antenna to viewer notwithstanding, and therefore requires the permission of the copyright holder.


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## lessd (Jan 23, 2005)

unitron said:


> There is no legal or moral obligation to watch the commercials.
> 
> There is no legal or moral obligation to watch the commercials.
> 
> ...


Who ever said there was any *legal or moral obligation to watch the commercials.*


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## Bigg (Oct 31, 2003)

Dan203 said:


> Oh they're going to milk that cow until it runs dry, then they'll ditch OTA. We're witnessing the beginning of the end of quality ad supported TV. In another decade or so the only thing left on broadcast will be syndication and reality TV.


True, a lot of content has already moved. I guess we'll see even more of it move over. There will always be a market for OTA TV, but it may just end up being that plus some re-runs of older stuff...



Diana Collins said:


> You are simply wrong.
> 
> There is no law with which they could be in 100% compliance. If you think there is, please quote it.
> 
> ...


You are flat-out wrong. Aereo was NOT re-transmitting, and that's the key to the reason why they were, in fact, 100% in compliance with the letter of the law. Re-transmission requires ingesting the signal into a system, and then splitting it to multiple subscribers in a way that's more than just a community antenna for a building. That could be IP-multicast (U-Verse) or physical QAM signals (cable and FIOS), but Aereo did not do that. Completely separate streams for each user is NOT retransmission, and anyone who cannot make that differentiation fundamentally doesn't understand how these systems work.

Aereo was NOT altering the signal like cable companies who have retransmission agreements do with ad injections and the like. Yes, they were re-encoding it, but that is NOT modification, and other devices that are local like Tablo and Simple.tv do similar re-encoding.


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## lessd (Jan 23, 2005)

Bigg said:


> True, a lot of content has already moved. I guess we'll see even more of it move over. There will always be a market for OTA TV, but it may just end up being that plus some re-runs of older stuff...
> 
> You are flat-out wrong. Aereo was NOT re-transmitting, and that's the key to the reason why they were, in fact, 100% in compliance with the letter of the law. Re-transmission requires ingesting the signal into a system, and then splitting it to multiple subscribers in a way that's more than just a community antenna for a building. That could be IP-multicast (U-Verse) or physical QAM signals (cable and FIOS), but Aereo did not do that. Completely separate streams for each user is NOT retransmission, and anyone who cannot make that differentiation fundamentally doesn't understand how these systems work.
> 
> Aereo was NOT altering the signal like cable companies who have retransmission agreements do with ad injections and the like. Yes, they were re-encoding it, but that is NOT modification, and other devices that are local like Tablo and Simple.tv do similar re-encoding.


A business that is Re-xmitting an OTA signal is re-xmitting an OTA signal even if it is to one person, one family, one home, even a bar or my friends dental office has to pay extra to re-xmitt to eyeballs that are not his family but part of his business. I not sure where you get some of your ideas from but even a bar with an OTA antenna has to pay extra to stay legal, Only a private home can put up an OTA antenna and watch anything they receive without paying anybody. If I send my OTA signal to my next door neighbor, by cable or internet, that not legal, as using a cable service and running a cable to my next door neighbor to split the cable cost would not be legal. If I rented some land on the top of a mountain near me, set up an OTA antenna, then converted the signal to put on a VPN internet to my home, that I could question if it was legal, most likely not.

I don't know if I let my next door neighbor pick up my WiFi (by giving him the password) if that is legal, but it would be a dumb move on my part as he might start downloading, say child porn or such.


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## Diana Collins (Aug 21, 2002)

Bigg said:


> ...You are flat-out wrong. Aereo was NOT re-transmitting, and that's the key to the reason why they were, in fact, 100% in compliance with the letter of the law...


Aside from the fact that YOUR idea of what constitutes retransmission is not in line with what ANYONE in the industry thinks, your legal beliefs are simply wrong and misguided.

I ask again...*WITH WHAT LAW WERE THEY IN "100% COMPLIANCE."* Show me where such a law is recorded...quote the verbiage you claim they complied with...what's the statute?

There is NO SUCH LAW...the law says you CAN NOT do what Aereo was doing. What Aereo _hoped_ was that they would be included under one or more of the established "fair use" _exceptions_ to the law. Their hopes were not realized.


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## Bigg (Oct 31, 2003)

lessd said:


> A business that is Re-xmitting an OTA signal is re-xmitting an OTA signal even if it is to one person, one family, one home, even a bar or my friends dental office has to pay extra to re-xmitt to eyeballs that are not his family but part of his business. I not sure where you get some of your ideas from but even a bar with an OTA antenna has to pay extra to stay legal, Only a private home can put up an OTA antenna and watch anything they receive without paying anybody. If I send my OTA signal to my next door neighbor, by cable or internet, that not legal, as using a cable service and running a cable to my next door neighbor to split the cable cost would not be legal. If I rented some land on the top of a mountain near me, set up an OTA antenna, then converted the signal to put on a VPN internet to my home, that I could question if it was legal, most likely not.
> 
> I don't know if I let my next door neighbor pick up my WiFi (by giving him the password) if that is legal, but it would be a dumb move on my part as he might start downloading, say child porn or such.


For Wifi, that's not a legality issue, that's a TOS issue with your ISP. Most ISPs don't allow re-sale/ sharing unless you have a business class connection, and some won't allow it at all.

There is an exception to re-transmission for a community antenna, so if you set up an antenna for your building and split the signal to several units, that would be legal.

However, Aereo was not re-transmitting. I'm not sure what is so complicated about that, but it was a closed 1:1 pairing of that signal to one customer. You can't re-transmit unless you split the signal somehow.

CableVision cloud DVR re-transmits, since it splits the signal coming in (probably over an IP-multicast network in the datacenter), then records to each users's virtual DVR, but they have licenses to re-transmit.



Diana Collins said:


> Aside from the fact that YOUR idea of what constitutes retransmission is not in line with what ANYONE in the industry thinks, your legal beliefs are simply wrong and misguided.
> 
> I ask again...*WITH WHAT LAW WERE THEY IN "100% COMPLIANCE."* Show me where such a law is recorded...quote the verbiage you claim they complied with...what's the statute?
> 
> There is NO SUCH LAW...the law says you CAN NOT do what Aereo was doing. What Aereo _hoped_ was that they would be included under one or more of the established "fair use" _exceptions_ to the law. Their hopes were not realized.


That's the evidence Aereo provided to very clearly show that they did not re-transmit. The court decided to take some other interpretation of the law that is not in line with that the law actually says, based on Aereo being "like" a cable company, and ignoring the massive technical differences between a cable company running a QAM plant with a single ingestion point, and Aereo with as many ingestion points as customers they were serving.

The law very clearly allowed what Aereo was doing. It was never intended to do that, since it was written long before any of the technology that Aereo utilized or invented existed, but nonetheless, it did.


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## telemark (Nov 12, 2013)

Diana Collins said:


> But could everyone please stop saying that Aereo "complied with the letter of the law." They did not. They complied with a particular view of the permission granted by the broadcasters (namely that the transmission is licensed "for private home viewing and the material may not be republished, rebroadcast or redistributed in whole or part with out the express written permission" of the station). The case turned upon whether or not that license, or any existing "fair use" exemptions to the license, applied to Aereo's business. The SCOTUS decided that they did not, and also declined to extend a new exemption.


Your argument demonstrates you know a good amount about copyright law, but the point you keep repeating makes me feel like you have not read the actual opinion. The opinion has virtually no mention of license or fair use. It was mostly about the public performance right and violation without volition.

None of the final analysis got as far as explicit license and fair use exception.



Bigg said:


> No. Based on the letter of the law, not my opinion, Aereo 100% complied with the law. SCOTUS decided to legislate from the bench based on what they thought Congress' intent was.


I found this notion interesting so tried to check this, by reviewing the text of all the cites. I think Bigg is correct. Not my opinion, opinion of the justices who wrote the opinions.



Spoiler



The trial court, and Circuit Appeals courts already said they complied, and the SCOTUS minority. This just leaves the SCOTUS majority, which said, the Statuatory Text was silent on this issue. (This is virtually the equivalent to saying they complied with the letter of the law).

Majority:
"Considered alone, the LANGUAGE of the ACT does not clearly indicate when an entity "perform" (or "transmit") and when it merely supplies equipment that allows others to do so. But when read in light of its purpose, the Act is unmistakable: An entity that engages in activities like Aereo's performs."

During Oral arguments, the first question was whether Aereo is a cable company. There is a definition of "Cable System" in the Act, and they never cited it in the opinion, cause, Aereo did not match it. And all parties granted that as well.

Instead, they cited a single House Committee Report. This is not part of the law. It can not be attributed to non-committee members, and excludes the entire Senate.

Then their logic becomes circular. The text does not cover Aereo's situation, but since Aereo has the same virtual effect as 1976 CATV, it must have meant to be included, and so whatever Aereo is doing, it must be construed to be prohibited behavior.

Many new technologies that comes along, will fall outside of the statue. Responding by saying that it was meant to be prohibited, when it's not actually prohibited, is a very poor policy making method, because it creates uncertainty which causes businesses to not spend on R/D because the legal risk can not be ascertained.

The statutory text is very short and accessible, the majority had to cite outside of the text, outside of caselaw precedent, because what they wanted was not there.






Dan203 said:


> Oh they're going to milk that cow until it runs dry, then they'll ditch OTA. We're witnessing the beginning of the end of quality ad supported TV. In another decade or so the only thing left on broadcast will be syndication and reality TV.


And infomercials.


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## Diana Collins (Aug 21, 2002)

telemark said:


> Your argument demonstrates you know a good amount about copyright law, but the point you keep repeating makes me feel like you have not read the actual opinion. The opinion has virtually no mention of license or fair use. It was mostly about the public performance right and violation without volition...


The Court did not mention fair use because they didn't need to go there. I bring fair use up because those who think Aereo was operating within the law do so because they think Aereo was covered by fair use. If the service provided is considered a public performance then it is in violation of copyright law, case closed.


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## Diana Collins (Aug 21, 2002)

Bigg said:


> ...That's the evidence Aereo provided to very clearly show that they did not re-transmit. The court decided to take some other interpretation of the law that is not in line with that the law actually says...


Where does the law say anything about what does or does not constitute retransmission?



Bigg said:


> ...The law very clearly allowed what Aereo was doing...


I'm still waiting for you to cite this law by quotation or statute. Until you do, you are just giving your opinion.


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## telemark (Nov 12, 2013)

*17 U.S. Code § 106 - Exclusive rights in copyrighted works
*


Spoiler



Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;


*17 U.S. Code § 101 - Definitions
*


Spoiler



To perform a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

To perform or display a work publicly means
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

To transmit a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.



*
17 U.S. Code § 111 - **Limitations on exclusive rights: Secondary transmissions of broadcast programming by cable*


Spoiler



*
(a)Certain Secondary Transmissions Exempted*. The secondary transmission of a performance or display of a work embodied in a primary transmission is not an infringement of copyright if

(3) the secondary transmission is made by any carrier who has no direct or indirect control over the content or selection of the primary transmission or over the particular recipients of the secondary transmission, and whose activities with respect to the secondary transmission consist solely of providing wires, cables, or other communications channels for the use of others: Provided, That the provisions of this paragraph extend only to the activities of said carrier with respect to secondary transmissions and do not exempt from liability the activities of others with respect to their own primary or secondary transmissions;

*(c) Secondary Transmissions by Cable Systems.
*(1) ... secondary transmissions to the public by a cable system of a performance or display of a work embodied in a primary transmission made by a broadcast station licensed by the FCC shall be subject to statutory licensing upon compliance with the requirements of subsection (d) where the carriage of the signals comprising the secondary transmission is permissible under the rules, regulations, or authorizations of the FCC.

(f) *Definitions*. As used in this section, the following terms mean the following:

(2) Secondary transmission. A secondary transmission is the further transmitting of a primary transmission simultaneously with the primary transmission, or nonsimultaneously with the primary transmission if by a cable system not located in whole or in part within the boundary of the forty-eight contiguous States, Hawaii, or Puerto Rico...

(3) Cable system. A cable system is a facility, located in any State, territory, trust territory, or possession of the United States, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the FCC, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection (d)(1), two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered as one system.


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## Diana Collins (Aug 21, 2002)

Thank you...but I knew what Title 17 says. Section 11 clearly says that what Aereo was doing was a retransmission, and that they were acting as a head end. They do not fall under the exemption in this section because they were employing far more than "wires, cables, microwave or other communications channels." They were demodulating the signal, decoding the data, encoding it and then transmitting the re-encoded data. They also offered the optional step of recording the data between the decoding and encoding steps.

I fully understand that some people say "there is no difference in those steps, it is just a different way of transmitting the signal that wasn't thought of when Section 11 was drafted." However, that is precisely the point. The law allows NO manipulation or relaying of the signal except as explicitly expressed. To make what Aereo did legal required their particular process to be declared as included in "wires, cables, microwave or other communications channels." This is what the Court declined to do.

Everyone and anyone is certainly entitled to say they think it should have been (and I might even agree). However, Aereo was not in "100% compliance" with the law since the law was mute on the subject of free to air reception of copyrighted material and re-encoding for streaming on the internet, and in this particular case, no explicit permission means no right at all.


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## Bigg (Oct 31, 2003)

telemark said:


> I found this notion interesting so tried to check this, by reviewing the text of all the cites. I think Bigg is correct. Not my opinion, opinion of the justices who wrote the opinions.


Yes, that's what I'm referring to. They interpreted Congress' intent, not the letter of the law. If Congress wants to extend their intent, they should have been given the opportunity to do so without SCOTUS interpreting what their intent may have been or currently is. Unfortunately, that probably would have meant the end of Aereo, but at least it would have gone through the right channels, and given people an opportunity to write their Congress critter and tell them that they want Aereo to be legal.



Diana Collins said:


> Thank you...but I knew what Title 17 says. Section 11 clearly says that what Aereo was doing was a retransmission, and that they were acting as a head end. They do not fall under the exemption in this section because they were employing far more than "wires, cables, microwave or other communications channels." They were demodulating the signal, decoding the data, encoding it and then transmitting the re-encoded data. They also offered the optional step of recording the data between the decoding and encoding steps.
> 
> I fully understand that some people say "there is no difference in those steps, it is just a different way of transmitting the signal that wasn't thought of when Section 11 was drafted." However, that is precisely the point. The law allows NO manipulation or relaying of the signal except as explicitly expressed. To make what Aereo did legal required their particular process to be declared as included in "wires, cables, microwave or other communications channels." This is what the Court declined to do.
> 
> Everyone and anyone is certainly entitled to say they think it should have been (and I might even agree). However, Aereo was not in "100% compliance" with the law since the law was mute on the subject of free to air reception of copyrighted material and re-encoding for streaming on the internet, and in this particular case, no explicit permission means no right at all.


No. It cannot be re-transmission when the signal is only being sent to one user, hence the entire concept of Aereo. If you use that logic, then TiVo is re-transmission, since it de-modulates and sends the signal over an Ethernet network (to a Mini). So is Slingbox.


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## lessd (Jan 23, 2005)

Bigg said:


> No. It cannot be re-transmission when the signal is only being sent to one user, hence the entire concept of Aereo. If you use that logic, then TiVo is re-transmission, since it de-modulates and sends the signal over an Ethernet network (to a Mini). So is Slingbox.


Re-transmission within your privet home is not the re-transmission problem we are talking about, it's re-transmission to people you don't know and that are paying you for that re-transmission.

Sling box is another issue, a friend called Comcast about a problem he was having with his Sling-Box and Comcast told him that Comcast could cut off his service to him for using the sling box, so Comcast CSR said don't tell us and we will not ask.


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## trip1eX (Apr 2, 2005)

Bah AEro was always f'd. If they were successful the broadcasters would cut them out in a heartbeat. 

Plus you gotta look at this from broadcasters point of view that Aero isn't pay diddly for the content they are giving consumers. Broadcasters pay something for it and something for those transmission antennas etc right? Yet they can make money off it without paying for the costs associated with the content?

And I don't think DISH can just put up a big antenna and give the signal to their consumers for nothing right? so why should Aero be able to do that?

It is all silly. Never mind why not just get an OTA Tivo.


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## lessd (Jan 23, 2005)

trip1eX said:


> Bah AEro was always f'd. If they were successful the broadcasters would cut them out in a heartbeat.
> 
> Plus you gotta look at this from broadcasters point of view that Aero isn't pay diddly for the content they are giving consumers. Broadcasters pay something for it and something for those transmission antennas etc right? Yet they can make money off it without paying for the costs associated with the content?
> 
> ...


Because some people can't put un any OTA antenna and get many of the OTA stations, however most cable co have a low price basic cable that just gives you the networks for a little more than Aeros was charging, when you include the internet cable you also need.


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## Diana Collins (Aug 21, 2002)

Bigg said:


> ...No. It cannot be re-transmission when the signal is only being sent to one user, hence the entire concept of Aereo. If you use that logic, then TiVo is re-transmission, since it de-modulates and sends the signal over an Ethernet network (to a Mini). So is Slingbox.


I understand that this is YOUR interpretation of retransmission, but it clearly was not the interpretation of the Justices, and in the final analysis, theirs is the only opinion that matters. It is also not the interpretation of the Fox Broadcasting Network since they have, in fact, filed a lawsuit against Dish network for their Hopper with Sling, focusing precisely on the streaming of Fox content outside the home without their permission.

Literally the ONLY thing you "automatically" get to do with an OTA broadcast is receive it with an antenna, run it down a wire directly attached to that antenna, and deliver it via that wire to a tuner within your home and then display it on a TV also within your home. ANYTHING else requires a license. The courts have over the years, said that there are certain things you can also do with that received content AFTER it has come into your home. These things include recording it, playing it back later, sending the content from one viewing location within the home to another, etc. But streaming to a viewing location outside the home has never be adjudicated and therefore can not be considered lawful or unlawful.

I strongly believe it will be judged to be no different than viewing within your home due to the reasonable safeguards all these products have to prevent abuse. But that is just my opinion.


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## Jonathan_S (Oct 23, 2001)

Bigg said:


> No. It cannot be re-transmission when the signal is only being sent to one user, hence the entire concept of Aereo. If you use that logic, then TiVo is re-transmission, since it de-modulates and sends the signal over an Ethernet network (to a Mini). So is Slingbox.


The definition quoted a few posts back from _17 U.S. Code § 101 - Definitions_ doesn't say anything about multiple people. It simply says: "To "transmit" a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent."

"Retransmit" wasn't defined there at all.

Can you point me to where retransmit is defined to only include transmissions to more than a single "device of process"?


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## Diana Collins (Aug 21, 2002)

trip1eX said:


> ...And I don't think DISH can just put up a big antenna and give the signal to their consumers for nothing right...


Although Dish did try exactly that back when they first started delivering local channels to customers. They got hauled into court just like Aereo was and a year and a half later, had to start negotiating re-transmission agreements. The ONLY difference between Aereo and Dish was that Dish used one big antenna instead of lots of little ones. The SCOTUS apparently felt that was a distinction without a difference...their business goal was the same and their methods, once the OTA signal was demodulated, were essentially identical.


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## Dan203 (Apr 17, 2000)

I wonder if Aereo actually assigned a specific antenna to a user, never to be used by anyone else, and then transmitted/recorded the signal as-is, without recoding, if they would have the same result? I'm guessing yes, because it seems like the justices didn't really care about the technology, or the fact that they weren't technically violating the law. They seemed to judge the case more on the spirit of the law then the letter of the law.

I really hope Dish doesn't lose the Slingbox case against Fox. That would be bad news for all of us and will send us down a path where a lot of things we do today will become illegal. It would be especially bad for me, and my work, where DRM is already a serious issue.


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## OCSMITH (Mar 16, 2006)

Diana Collins said:


> I understand that this is YOUR interpretation of retransmission, but it clearly was not the interpretation of the Justices, and in the final analysis, theirs is the only opinion that matters. It is also not the interpretation of the Fox Broadcasting Network since they have, in fact, filed a lawsuit against Dish network for their Hopper with Sling, focusing precisely on the streaming of Fox content outside the home without their permission.
> 
> Literally the ONLY thing you "automatically" get to do with an OTA broadcast is receive it with an antenna, run it down a wire directly attached to that antenna, and deliver it via that wire to a tuner within your home and then display it on a TV also within your home. ANYTHING else requires a license. The courts have over the years, said that there are certain things you can also do with that received content AFTER it has come into your home. These things include recording it, playing it back later, sending the content from one viewing location within the home to another, etc. But streaming to a viewing location outside the home has never be adjudicated and therefore can not be considered lawful or unlawful.
> 
> I strongly believe it will be judged to be no different than viewing within your home due to the reasonable safeguards all these products have to prevent abuse. But that is just my opinion.


That would make steaming Tivo OTA outside of the house unlawful right???


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## atmuscarella (Oct 11, 2005)

OCSMITH said:


> That would make steaming Tivo OTA outside of the house unlawful right???


Your question is a little broad. My take on all of this is that the broadcasters are looking for ways to get paid more fees. Isn't that what service like Hulu are all about? They don't care if you watch their shows on a computer/tablet/phone, they just want an additional fees to do so.


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## Diana Collins (Aug 21, 2002)

OCSMITH said:


> That would make steaming Tivo OTA outside of the house unlawful right???


Not at the moment, but it isn't lawful at the moment either. It is in a grey area because it COULD be considered legal under some interpretations of the law and previous rulings, but could also be unlawful under other interpretations.

As I said in previous posts, the high likelihood is that the courts will find that, if a viewer has recorded the program legally, then place-shifting for private viewing is part of the fair use of the recording. If a user breaks the law and streams content to a place and/or audience that violates the copyright, then the copyright holder needs to take that up with the person or persons doing the streaming. This would cover DirecTV's GenieGo and TiVo's Stream.

The Sling/Vulkano approach is bit different since it does not require that the content be recorded first. With the possibility of live transmission you do open the possibility of a copyright violation since this does effectively become a retransmission of the content, as opposed to the transfer of a recording. I think the key factor will be whether or not the court feels that the one to one nature of these connections are sufficient to effectively discourage widespread abuse.

Personally, I expect that they will extend fair use to include Sling and Vulkano, but I wouldn't bet more than $20 on it.


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## telemark (Nov 12, 2013)

Jonathan_S said:


> The definition quoted a few posts back from _17 U.S. Code § 101 - Definitions_ doesn't say anything about multiple people. It simply says: "To "transmit" a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent."
> 
> "Retransmit" wasn't defined there at all.
> 
> Can you point me to where retransmit is defined to only include transmissions to more than a single "device of process"?


Retransmit is not the term used in the Copyright statue. It uses the terminology:
To Perform
To Transmit
To Perform Publicly
To Transmit to the Public
Primary Transmission (FCC TV station)
Secondary Transmission (retransmission of FCC TV station)

The Copyright Law, gives a protection to the Copyright Owner, for PUBLIC PERFORMANCES. Public performances originally meant things like plays and exhibitions, but in 1976 the definition was expanded to include Transmissions to the Public.

This set of laws is what creates the Copyright Protection rights. What was not included, was not protected. There therefore is no prohibition / restrictions on the rest.
No Copyright prohibition on those who Perform Privately.
No Copyright prohibition on those who Transmit not to the Public.

STOP HERE, for the casual reader. Everything below only applies when the behavior was protected, and it gets more wordy hereafter. But for those who do _not_ Transmit to the Public, nothing more applies because they don't need anything additional to be allowed to do that. [there are other copy protection rights however. for a complete analysis, an actor would have to check they don't violate any of those.]

Exclusions, are exceptions where the behavior would normally be copyright protected but for a mix of reasons, the protection is limited or does not create liability. Via Statue:
There is an exclusion for Secondary Transmissions (retransmission) by a Carrier.
There are exclusions for Secondary Transmissions (retransmission) by Cable and Satellite, but with a number of conditions to qualify.
There is an exclusion for ISP's.
Courts have expanded as well:
Fair Use
Implied License

Diana references a hypothetical license a broadcaster may be repeating:
"for private home viewing and the material may not be republished, rebroadcast or redistributed in whole or part with out the express written permission"

Licenses are what the Copyright Owner use to give permission to non-owners to allow use of their copyrighted work. Sometimes this is done in exchange for money. They are _permissive_, not _restrictive_ instruments.

That is, they can allow a consumer to do more things than without the license, but in no instance can they restrict (take away) liberties the consumer had previously, without the license.

It's common practice to write it (a license) as restrictive as possible out of paranoia, but whenever it claims to prohibit behavior beyond what's protected, they have overstepped what they can actually do, and the text was a waste of space and attention.

(License Agreements, Click through licenses, and DRM are beyond the scope of this conversation but attempt to create additional restrictions via contract and criminal law)


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## Bigg (Oct 31, 2003)

lessd said:


> Re-transmission within your privet home is not the re-transmission problem we are talking about, it's re-transmission to people you don't know and that are paying you for that re-transmission.
> 
> Sling box is another issue, a friend called Comcast about a problem he was having with his Sling-Box and Comcast told him that Comcast could cut off his service to him for using the sling box, so Comcast CSR said don't tell us and we will not ask.


I find that rather dubious that they claim they could cut service off for using a Slingbox. The only way that they could pull that stunt would be if they have some sort of "we can terminated service for any reason we feel like" type of clause, which may very well be in the user agreement somehow. Slingbox doesn't violate anything, since it's for private use.

That being said, they shouldn't be supporting Slingboxes, as it's not their own hardware. They have to support TiVos in a limited manner due to CableCard, but they also shouldn't be supporting TiVo Minis...



Diana Collins said:


> I understand that this is YOUR interpretation of retransmission, but it clearly was not the interpretation of the Justices, and in the final analysis, theirs is the only opinion that matters. It is also not the interpretation of the Fox Broadcasting Network since they have, in fact, filed a lawsuit against Dish network for their Hopper with Sling, focusing precisely on the streaming of Fox content outside the home without their permission.


What I posted is what the law says. The SCOTUS interpreted Congress's intent to mean something else in relation to Aereo. They should have kicked it back to Congress for Congress to actually make a law, and be subject to public pressure to counter the evil networks.



Diana Collins said:


> Although Dish did try exactly that back when they first started delivering local channels to customers. They got hauled into court just like Aereo was and a year and a half later, had to start negotiating re-transmission agreements. The ONLY difference between Aereo and Dish was that Dish used one big antenna instead of lots of little ones. The SCOTUS apparently felt that was a distinction without a difference...their business goal was the same and their methods, once the OTA signal was demodulated, were essentially identical.


Right, the SCOTUS interpreted what they thought Congress has intended, not what was actually written in the law.

I'd love to see a big cable company that has a monopoly in an urban area just refuse to pay the networks and go for a "must-carry or nothing" stance. They wouldn't have the balls to do it, but it would be rather interesting... The cable cos control the pipe, so they could put a message up informing customers about the situation with the stations demanding too much for carriage...


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## Dan203 (Apr 17, 2000)

atmuscarella said:


> Your question is a little broad. My take on all of this is that the broadcasters are looking for ways to get paid more fees. Isn't that what service like Hulu are all about? They don't care if you watch their shows on a computer/tablet/phone, they just want an additional fees to do so.


Hulu charges a fee AND forces you to watch commercials, so it's not really a viable alternative.



Diana Collins said:


> Not at the moment, but it isn't lawful at the moment either. It is in a grey area because it COULD be considered legal under some interpretations of the law and previous rulings, but could also be unlawful under other interpretations.
> 
> As I said in previous posts, the high likelihood is that the courts will find that, if a viewer has recorded the program legally, then place-shifting for private viewing is part of the fair use of the recording. If a user breaks the law and streams content to a place and/or audience that violates the copyright, then the copyright holder needs to take that up with the person or persons doing the streaming. This would cover DirecTV's GenieGo and TiVo's Stream.
> 
> ...


Didn't the CableVision remote DVR case cover this?


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## Diana Collins (Aug 21, 2002)

Dan203 said:


> Hulu charges a fee AND forces you to watch commercials, so it's not really a viable alternative...


Not for the viewer, perhaps, but that is the model the owner of the product wants to use to sell the product. There is no legal way I can see to make them do otherwise.



Dan203 said:


> ...Didn't the CableVision remote DVR case cover this?


I have not read the text of the decision in that case, but my understanding is that it addressed the issue of cloud storage and playback and how that was similar to the content provider's on demand offerings. The plaintiffs maintained that playing back a copyrighted recording from Cablevision's server was a public performance because the storage was under Cablevision's control and they managed the delivery and retransmission. As I understand it, the ruling said that since each user decided what to record and when to watch it, it was not streaming in the way Hulu or Netflix are (which requires an additional license) and so is covered by existing laws and rules. In any event, it is the live transmission that may be the issue since that is what can lead to issues like a sporting event being viewed in an area where that event is blacked out. Since the Cablevision Cloud DVR case did not involve live streaming that aspect was not addressed.


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## Diana Collins (Aug 21, 2002)

Bigg said:


> I...What I posted is what the law says..


I understand that you think that, but that is your opinion, not a fact, and you are entitled to it. I think the law says no such thing. You agree with Aereo's attorneys and I agree with the broadcasters' attorneys and the Supreme Court. In both cases, they are the opinions of the parties involved. There are very few absolutes in the law, particularly government regulations. Court decisions are even called "the opinion of the court." In the end, of course, the court's opinion is the only one that really matters.


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## BrettStah (Nov 12, 2000)

It sure would be nice if we didn't have to pay the local stations for the convenience afforded to us by cable/satellite companies that grab the freely broadcast signals from the air and send it to us via cable or satellite. Those companies are just giving us the same content that we could get with our own antenna, so why should the local stations be able to charge for it?

If the cable/satellite companies want to work out a financial arrangement with the local stations to get a fiber line hooked up, rather than rely on OTA, then that's fine. 

Also, it would be great if there wasn't a monopoly granted to the local stations - if my local NBC station sucks, it'd be great if I could pay for another city's NBC station.


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## Diana Collins (Aug 21, 2002)

Bigg said:


> ...I'd love to see a big cable company that has a monopoly in an urban area just refuse to pay the networks and go for a "must-carry or nothing" stance. They wouldn't have the balls to do it, but it would be rather interesting... The cable cos control the pipe, so they could put a message up informing customers about the situation with the stations demanding too much for carriage...


Perhaps, but since there is no such thing as an area (large, small, urban, suburban or rural) where a cable company has a monopoly it will never happen.


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## CuriousMark (Jan 13, 2005)

Diana Collins said:


> Perhaps, but since there is no such thing as an area (large, small, urban, suburban or rural) where a cable company has a monopoly it will never happen.


I would argue that most cable companies do indeed have the local monopoly on High speed low latency internet services. Neither satellite nor DSL providers can provide both of those. There are some areas with an over-builder or FIOS where a user has a choice of to providers that can offer this, but most of America does not. For many it is this service that drives many people to select cable. With that said, I agree that their television services have viable competition, most everywhere.


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## BobCamp1 (May 15, 2002)

Bigg said:


> What I posted is what the law says. The SCOTUS interpreted Congress's intent to mean something else in relation to Aereo. They should have kicked it back to Congress for Congress to actually make a law....


This happens all the time. Congress (if it actually worked as intended) could spend every waking hour just adding minor clarifications to existing laws, especially with technology easily outpacing the legislative branch. They would have no time to even remotely consider new laws for any new problems that would come up.

In another recent case, SCOTUS ruled that cops needed a search warrant for cell phones. Note that cell phones are not in the Fourth Amendment. Did you really want to tie up Congress' and your state legislature's time to add an Amendment to the Constitution just for that?

What SCOTUS did here was part of the judicial branch's normal function -- decide if the intent of the original law was meant to cover this specific case or not. It was not a 5-4 decision either. And it only addressed one of the four potential ways Aereo could have been violating copyright law.


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## CharlesH (Aug 29, 2002)

I thought that Slingbox has survived court challenges. What exactly was ruled? Is there the issue of conflicting rulings that was present in the Aereo situation, which got the SCOTUS involved? Does the Dish Hopper case relate to standalone Slingbox use?


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## Dan203 (Apr 17, 2000)

Diana Collins said:


> Not for the viewer, perhaps, but that is the model the owner of the product wants to use to sell the product. There is no legal way I can see to make them do otherwise.
> 
> I have not read the text of the decision in that case, but my understanding is that it addressed the issue of cloud storage and playback and how that was similar to the content provider's on demand offerings. The plaintiffs maintained that playing back a copyrighted recording from Cablevision's server was a public performance because the storage was under Cablevision's control and they managed the delivery and retransmission. As I understand it, the ruling said that since each user decided what to record and when to watch it, it was not streaming in the way Hulu or Netflix are (which requires an additional license) and so is covered by existing laws and rules. In any event, it is the live transmission that may be the issue since that is what can lead to issues like a sporting event being viewed in an area where that event is blacked out. Since the Cablevision Cloud DVR case did not involve live streaming that aspect was not addressed.


There are no laws protecting blackouts of sporting events. They are simply exploiting the range of OTA signal and their relationships with the MSOs to make that system work. Just because something allows a consumer to bypass the blackout does not make it illegal.


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## Dan203 (Apr 17, 2000)

These content owners have options if they want better protection. They can simply move their content to cable and then negotiate a deal with the MSOs to use the "copy once" flag. They are choosing to use public airwaves, where the courts already ruled against DRM back in the "broadcast flag" days. If they want to use public airwaves then fair use should prevail. If they don't like it they can move to cable.


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## Bigg (Oct 31, 2003)

CuriousMark said:


> I would argue that most cable companies do indeed have the local monopoly on High speed low latency internet services. Neither satellite nor DSL providers can provide both of those. There are some areas with an over-builder or FIOS where a user has a choice of to providers that can offer this, but most of America does not. For many it is this service that drives many people to select cable. With that said, I agree that their television services have viable competition, most everywhere.


And in many cities, many people can't get satellite, so they in effect do have a monopoly even on TV. NYC now has competition with FIOS and RCN, but almost all of Boston and Cambridge, for example, is an ironclad Comcast monopoly. Some can surely get a dish, but many can't... Out in the 'burbs there's not the same monopoly on TV, as most people could put a dish up...



BobCamp1 said:


> This happens all the time. Congress (if it actually worked as intended) could spend every waking hour just adding minor clarifications to existing laws, especially with technology easily outpacing the legislative branch. They would have no time to even remotely consider new laws for any new problems that would come up.
> 
> In another recent case, SCOTUS ruled that cops needed a search warrant for cell phones. Note that cell phones are not in the Fourth Amendment. Did you really want to tie up Congress' and your state legislature's time to add an Amendment to the Constitution just for that?
> 
> What SCOTUS did here was part of the judicial branch's normal function -- decide if the intent of the original law was meant to cover this specific case or not. It was not a 5-4 decision either. And it only addressed one of the four potential ways Aereo could have been violating copyright law.


Different situation there. Not a good analogy to Aereo.


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## Diana Collins (Aug 21, 2002)

CuriousMark said:


> I would argue that most cable companies do indeed have the local monopoly on High speed low latency internet services. Neither satellite nor DSL providers can provide both of those. There are some areas with an over-builder or FIOS where a user has a choice of to providers that can offer this, but most of America does not. For many it is this service that drives many people to select cable. With that said, I agree that their television services have viable competition, most everywhere.


No argument...and since we were talking about Aereo's business model I was referring TV in general and to local TV channels specifically. Even if a cable company were to gain complete control of all cable customers in a DMA, there would still be satellite as competitors.


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## Diana Collins (Aug 21, 2002)

Dan203 said:


> These content owners have options if they want better protection. They can simply move their content to cable and then negotiate a deal with the MSOs to use the "copy once" flag. They are choosing to use public airwaves, where the courts already ruled against DRM back in the "broadcast flag" days. If they want to use public airwaves then fair use should prevail. If they don't like it they can move to cable.


But fair use is not a blanket either. In many ways both the Aereo case and the Dish/Sling case can be looked at as being about setting limits on fair use.


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## Diana Collins (Aug 21, 2002)

Dan203 said:


> There are no laws protecting blackouts of sporting events. They are simply exploiting the range of OTA signal and their relationships with the MSOs to make that system work. Just because something allows a consumer to bypass the blackout does not make it illegal.


There may not be any laws protecting blackouts, but the broadcasts in question are the property of their respective copyright holders and they have the right to sell access to their property in any way they choose, just as the customer is free to choose to buy or not. Take the NFL - they have chosen to only make certain games available for broadcast in a given area. That is their right. A mechanism that takes a game from a place where they choose to sell it and deliver it instead to a place where chose to not sell it is a violation of the terms of the original sale, whether that sale was made directly to a viewer or through a middleman (such as a cable operator). That is a breech of contract and is subject to civil penalties.

Dish is uniquely vulnerable here because they are both the middleman and the purveyor of the means to circumvent the content owner's intent. You can not use the DirecTv GenieGo, for example, with sports package content. You can't stream HBO content with a TiVo Stream or Roamio. AFAIK, Dish places no such limits on the Slingbox they built into the Hopper, and they certainly don't limit the standalone versions.


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## Dan203 (Apr 17, 2000)

Diana Collins said:


> But fair use is not a blanket either. In many ways both the Aereo case and the Dish/Sling case can be looked at as being about setting limits on fair use.


The Aereo case was about paying retransmission fees. The ruling did not specifically discuss place shifting or the devices the service was available on. That's why Fox pointing to it as a precedent for their lawsuit against Dish/Slingbox is total BS.



Diana Collins said:


> There may not be any laws protecting blackouts, but the broadcasts in question are the property of their respective copyright holders and they have the right to sell access to their property in any way they choose, just as the customer is free to choose to buy or not. Take the NFL - they have chosen to only make certain games available for broadcast in a given area. That is their right. A mechanism that takes a game from a place where they choose to sell it and deliver it instead to a place where chose to not sell it is a violation of the terms of the original sale, whether that sale was made directly to a viewer or through a middleman (such as a cable operator). That is a breech of contract and is subject to civil penalties.
> 
> Dish is uniquely vulnerable here because they are both the middleman and the purveyor of the means to circumvent the content owner's intent. You can not use the DirecTv GenieGo, for example, with sports package content. You can't stream HBO content with a TiVo Stream or Roamio. AFAIK, Dish places no such limits on the Slingbox they built into the Hopper, and they certainly don't limit the standalone versions.


The NFL is not selling the viewer anything. They are selling their content to the network. It's the network's job to protect their blackout rules. If they can no longer guarantee blackouts by geography due to technological advances then the NFL can either accept it or move their content to over to a system that offers them the protection they seek.

The problem is that these companies have business models that are based around the limitations of old technology. And instead of adapting to the new technology they're trying to hinder it via laws to protect their old business model. They tried the same thing with VCRs and lost. Hopefully the same will happen in this case.


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## Diana Collins (Aug 21, 2002)

Dan203 said:


> The Aereo case was about paying retransmission fees. The ruling did not specifically discuss place shifting or the devices the service was available on. That's why Fox pointing to it as a precedent for their lawsuit against Dish/Slingbox is total BS...


I agree with you about the Dish/Sling case being questionable, but that never stopped a lawsuit from going forward. As for what the Aereo case ruling did or didn't establish, any ruling is open to being used as a precedent. Some are directly applicable, some not so much. This is one of the reasons we have so many lawyers in the country.



Dan203 said:


> ...The NFL is not selling the viewer anything. They are selling their content to the network. It's the network's job to protect their blackout rules. If they can no longer guarantee blackouts by geography due to technological advances then the NFL can either accept it or move their content to over to a system that offers them the protection they seek.
> 
> The problem is that these companies have business models that are based around the limitations of old technology. And instead of adapting to the new technology they're trying to hinder it via laws to protect their old business model. They tried the same thing with VCRs and lost. Hopefully the same will happen in this case.


Again, no argument - I'll just point out that Fox's lawsuit against Dish can be seen as them doing exactly that - protecting the blackout rules set by their vendor, the NFL. However, just as the recording industry fought tooth and nail to preserve their old, far more lucrative, model, you can expect the television industry to fight to preserve its model. I'm not sure how much of the decline in quality and diversity of popular music can be assigned to the changes in the business, but I for one would not want to see broadcast television deteriorate in quality and diversity any more than it already has.


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## Dan203 (Apr 17, 2000)

While broadcast TV is in decline original programming by cable stations and streaming services is improving remarkably. Showing that even if quality "free" TV goes away we will still have quality options for keeping us entertained.


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## lessd (Jan 23, 2005)

Dan203 said:


> While broadcast TV is in decline original programming by cable stations and streaming services is improving remarkably. Showing that even if quality "free" TV goes away we will still have quality options for keeping us entertained.


The problem is finding some of the great shows that are not on the networks IE: *The Americans *on the FX network


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## Bigg (Oct 31, 2003)

lessd said:


> The problem is finding some of the great shows that are not on the networks IE: *The Americans *on the FX network


Sports. Sports. Sports. I have to have XF Preferred to get all of my teams' games. Or XF Starter plus Sport Pack.


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