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Court Rejects Fox's Attempt to Use Aereo Ruling Against Dish's Hopper 67

Posted by Unknown Lamer
from the spacetime-shifting-is-not-a-crime dept.
Fox and Dish have been locking horns over Dish over its streaming and PVR services for a while now, and immediately after the Aereo ruling Fox sought an injunction against Dish's services. The court rejected the request. From the article: Fox pointed out the Supremes had reflected Aereo's argument (which it said was Dish's as well) that a performance was not public under the Copyright Act if each sub watches a unique stream. Fox's lawyer, Richard Stone, argued that Aereo was also essentially about attaching a Slingbox to a DVR. But that got some pushback. One judge countered that it was "completely different technology" and said that while that was the argument, "the Supreme court has all sorts of caveats in the opinion about how this was about Aereo and nothing else and a lot of the 'nothing elses' seem to be pretty similar to Slingbox." The underlying case will continue moving forward (going to trial in early 2015).
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Court Rejects Fox's Attempt to Use Aereo Ruling Against Dish's Hopper

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  • by paiute (550198) on Tuesday July 15, 2014 @08:11AM (#47455795)
    The networks want to be paid every time a consumer watches a program, live, recorded, restreamed, or whatever. I am surprised that they do not insert a screen before every show reading something along the lines of 'I agree not to redirect the following content.' If the user does not agree with that, they are instructed to stop the program at that point.
    • by SJHillman (1966756) on Tuesday July 15, 2014 @08:18AM (#47455827)

      " insert a screen before every show"

      Don't be silly. They'd insert the screen right over the damned show.

      • by slapout (93640)

        "Don't be silly. They'd insert the screen right over the damned show."

        Don't be silly. That'd interfere with the commercial they're already showing over the show.

    • Most EULAs have been found to be non-binding in court... and that wouldn't event count as one given that the user wouldn't have a way to accept or decline it. About the only way EULA's are helpful is in "Breach of contract" situations. If fox were providing the stream to you instead of Dish, and you violated the EULA they could use that to find you in breach of contract and end your service.

      • Most EULAs have been found to be non-binding in court...

        Please give an example.

        What's true is that if the EULA says "you may do X only if you do Y", then nobody can force you to do Y, but then you also don't have the right to do X. If you have done X already, you have the choice of deciding whether you do Y, or whether you did X without permission. Whatever is better for you.

        • by Mashiki (184564)

          Depends on where you live, outside of the US ELUA's may/do directly conflict with the law to protect consumers. In turn, in several countries because it's not "understandable by a layman" it may be fully revoked. It's a full on country/province/state by place basis, and there's far too much case, statute law to even start giving examples without getting into the legal muck.

        • What's true is that if the EULA says "you may do X only if you do Y", then nobody can force you to do Y, but then you also don't have the right to do X.

          That's only true if you needed their permission to do X in the first place. The EULA can't unilaterally revoke your existing rights. Generally the enforceability of a EULA rests on copyright; if you're not doing anything that would violate the copyright, you have no need to agree to the EULA. (And—in the US—simply using media you already have a legal copy of is not a copyright violation; the "temporary copy inside the computer's hard disk or RAM" reasoning originally used to justify most EULAs w

    • by Aaden42 (198257)

      We already have a EULA for video. It’s called “Fair Use.”

      If the broadcaster does not agree with that, they are instructed to stop using public airwaves to disseminate their content and go out of business.

    • The networks want to be paid every time a consumer watches a program, live, recorded, restreamed, or whatever. I am surprised that they do not insert a screen before every show reading something along the lines of 'I agree not to redirect the following content.' If the user does not agree with that, they are instructed to stop the program at that point.

      Well if the show is being piped into my dvr and I only watch it latter then the eula would not apply as i "agreed" to it after I had recorded it.

    • http://youtu.be/a4uC2H10uIo [youtu.be]

      Actually, not new.

      The aereo case isn't about user redirection but rather if a company can redirect OTA broadcasts. Shockingly the legal answer is no.

  • Is this a common usage that I'm just coming across?

  • by duckgod (2664193) on Tuesday July 15, 2014 @08:20AM (#47455835)
    This is complete bullshit. The argument for Aereo was always that if I can rent an apartment in the same city, hook a slingbox up to an antenna, and stream the tv to my second apartment is legal then so is Aereo. This is what I believe to be a solid legal argument. The Supreme Court decided to go with a walk like a cable company, quack like a cable company than follow the rules of a cable company. Judge Scalia had it right in the dissent "It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes,". This was a loophole around a bullshit law. But it was definitely logically legal loophole.

    Now the Fox Lawyers are trying to use this bullshit duck test ruling backwards towards slingbox. Good for the court to quickly reject this Monty Python and the Holy Grail witch logic.
    • by Impy the Impiuos Imp (442658) on Tuesday July 15, 2014 @08:29AM (#47455887) Journal

      Your Aero argument is indeed solid...except for one thing. Congress deliberately mucked it up by preventing cable companies from being able to rebroadcast local broadcast channels, implementing this must-carry-for-free-or-negotiate-for-dollars, tv station decides.

      Congress did it! However, Fox has no leg to stand on, with the the Aero ruling, anyway. You have your signal and shows already and are just using slingbox to transmit it around for you. This doesn't fall afoul of Congress' strange law for must-carry.

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        Also, Fox is one of the most fucking restrictive content providers in that they require that you not be allowed to skip past their bullshit advertising. This is probably one of their biggest issues with Dish's Hopper DVR. It got to the point that I stopped watching any Fox shows OnDemand anymore because I can't stand being forced to watch their fucking commercials. That and the fact that if I stop halfway through and don't pick it back up within something like 6 hours, I have to start all over again from

        • I'm actually happy about fox doing this, as it creates hatred for DRM and such.

          • I'm actually happy about fox doing this, as it creates hatred for DRM and such.

            False hope... 99.999% of people have no idea what DRM is and don't care. Fox's goal is to squeeze more franchise fees out of Dish. "The Hopper" isn't even all that interesting of a gadget and will likely be dead and gone before this case is even settled. Once the case is settled it'll just be a matter of who's paying whom and will have virtually no impact on consumers other than the legal precedent affecting future products.

        • by fuzznutz (789413)
          You need to do like I do. Wait two hours after broadcast and pick up your cleaned up, commercial free, HD copy free of charge from the Pirate Bay.

          Is your local broadcast interrupted by bullshit - "it's raining outside" - emergency broadcasts?
          Is your local broadcast preempted by football or baseball games that run too long?
          Does your local broadcast shrink to half size to show the lottery results or other "important" information?

          No problem... Pirate bay has a clean copy.
    • by alen (225700)

      why would anyone rent two apartments in the same city?

    • This seems to further re-affirm the court's position (agree with it or not) that Aereo is a cable company even though they use the internet for transfer. It will be interesting to see if this opens the door for others who want to do similar. It seems that it would be quite easy to put up a few antennas and servers and create your own local cable company with PC, android and IOS apps on the client end, no need for set top boxes. If enough of these ventures sprang up, they could eventually consolidate and off
      • This seems to further re-affirm the court's position (agree with it or not) that Aereo is a cable company even though they use the internet for transfer.

        Why would we not agree? It doesn't matter what media or protocol being used to forward the television signal. What mattered was that Aereo provided a service to forward all the live broadcasts to you which seems very similar to the early cable companies. We had wireless cable companies in the 90's. The fact that they were wireless didn't diminish their abil

        • Slingbox is very different. It's a personal device that does nothing but forward a single channel from your own cable box (or DirectTV receiver) to your current location.

          Um, that's EXACTLY what Aereo was doing. A single antenna, tuned to a single broadcast, streamed to a single IN-MARKET user. My dad and I actually discussed this over the weekend. He sided with the broadcasters cos Aereo was for-profit. That was it. He agreed with me on the technical merits but disagreed Kanojia, Diller et. al. should be able to profit.

          • by Isca (550291)
            And that's why the supremes very carefully tried to say this only affects aero.
          • Except Aereo was providing the rebroadcast. With sling box you are redirecting broadcasts from your own home. The courts saw little difference between leasing an antenna and providing a subscription service and saw the former as an attempt to provide the latter without having to pay rebroadcast fees to the local affiliates.
            • by GTRacer (234395)
              I'll be honest here - I didn't read the "Cablevision" decision validating third-party DVR operation on the behalf of a customer. But what it says to me is that Aereo is taking a legal, single OTA broadcast reception, storing it in a third-party DVR and making it available to a customer who is already entitled to that OTA broadcast by being in-market.

              I *still* don't see how any of what they did violated the LETTER of the law. And as Number 1.0 said, technically correct is the best kind of correct.

              Maybe
              • Maybe what I need to see is this clarified: Could I, as a New Yorker, rent a rooftop in the city, put up an antenna and run a wire to my ground floor apartment several blocks over? If the answer is yes, then why can't Aereo do the same thing on my behalf? Where does it say I have to OWN the antenna and transmission medium versus RENT?

                To paraphrase the SCOTUS: Because Aereo is not only an equipment provider but also a service provider, the supreme court ruled that the business model that Aereo operated under

                • by GTRacer (234395)

                  The original purpose of a cable TV system was to provide reception of OTA broadcasts to areas [...]

                  I get this part. But the difference I see is that the CATV operator is taking a good OTA signal and MULTICASTING that signal to whomever wants to tune to that channel out of the total channels in the pipe. Aereo is NOT multicasting - they're maintaining a one-to-one relationship between a received OTA signal and the user tuned to it. Only one channel's signal is in Aereo's feed to the customer at any given

                  • Again, they do the same sort of thing a CATV does, but by aggregating several discrete receptions across several discrete connections. This to my IANAL eyes is why Aereo should have been allowed to continue until someone changed laws regarding OTA reception and access.

                    The act used to define and regulate a cable system only specifies that the cable system sends video transmissions directly to the subscriber and makes no mention about the protocol or method used to send that video transmission over wire or ca

                    • by GTRacer (234395)
                      Hi Bill! First, I want to thank you for taking the time to discuss this with me! Second, I promise I'm not trying to be thick. I believe in my position and am using this back-and-to to clarify and refine my thoughts.

                      As to Aereo, I thought the core issue came down to the public performance threshold. Multicasting is in effect, a public performance, right? Requiring cumpulsory licensing?

                      If Aereo truly is private performance, bolstered by previously-approved technical measures like remote DVR, I don't g
          • Um, that's EXACTLY what Aereo was doing.

            Excluding the part where slingbox users are the end-to-end owners of their personal redirect service and Aereo being a for-profit company in the business of leasing access to an antenna, I can see how you can think of them being the exact same thing.

        • Some don't agree. I don't fully agree. My point was that it doesn't matter fro this discussion. But alas, we are redirected back to it anyway.
          • Fox is the redirecting us to this discussion by trying to apply the Aereo ruling to their case. I'm in agreement with you that despite Fox's best efforts the Aereo ruling isn't a factor in this case, since we are talking about what people do with their video once it reaches the confines of their own homes.
    • While I wish Aereo had won, I can see the argument against them as a "re-broadcaster". If the OTA signal comes in encoded digitally as MPEG2 and is then re-encoded to MPEG4 to make it use less bandwidth, that is in a sense rebroadcasting. If they transmitted the data from the antenna down the wire using the much less efficient encoding option it might have been different in my view. I do believe, however, that Aereo acting as a re-broadcaster is entitled to the same statutory license as all cable and sat
      • by odie5533 (989896)

        If the OTA signal comes in encoded digitally as MPEG2 and is then re-encoded to MPEG4 to make it use less bandwidth, that is in a sense rebroadcasting.

        What I choose to do with my files on my rented server for my own personal use should be only my business.

      • by mark-t (151149)
        The biggest argument against Aero, I think, lies in that the fact that they were doing it for commercial gain... As a general principle, they weren't actually doing anything that it isn't completely legal for a private person to do for their own purposes, but as soon as you throw making any money while doing it into the mix, any recordings that you make no longer qualify simply as "private home viewing" and are thus ineligible for copyright infringement exemption.
        • by stdarg (456557)

          If Aereo set up the same antenna, the same DVR, the same transcoding hardware, but they came out to your house and did it on your property, then I would think it's pretty clearly legal. Even if they charged you for it. Because of that, I don't think it's the money that makes it legally problematic. It's just an idiotic opinion by the Supreme Court. They happen from time to time. Their insistence that this only applies to Aereo and not the underlying technology implies that they understand the technology is

          • by mark-t (151149)
            If it is on your own property then *you* are the one doing the recording, and not aero. The private home viewing exemption to copyright infringement enables you to record programs... But if you start collecting fees fom other people to record stuff for them, then you are forgoing that exemption.
            • by Ichijo (607641)

              If it is on your own property then *you* are the one doing the recording, and not aero.

              And if the equipment is in a colocation facility owned neither by you nor by Aereo, then the colocation facility is the one doing the recording?

              • by mark-t (151149)

                Even if they do not own it, they still rent or lease it... regardless, it is their responsibility.

                The private home viewing recording exemption to copyright applies to private home recording only... not to companies or even to individuals who would seek monetary compensation by recording content for absolutely anyone else who will pay for it. That puts them squarely into the content of broadcasting, and although it's not illegal to be a broadcaster in general, being a broadcaster doesn't automatically ne

                • by stdarg (456557)

                  You're contradicting yourself.. if you're saying whoever rents or leases it is responsible, then if you're renting an antenna from Aereo, you are the one using the equipment and its use falls under your responsibilities and rights.

    • The whole problem is Congress passed protectionist legislation when this was brought up in the 70s. This protectionist legislation is what stopped Aereo, not actual logical law.
    • by Rich0 (548339)

      While I think that the laws around Copyright need massive reform, I do have a problem with the "not our job to plug loopholes" mentality.

      It is impossible to create a law free of loopholes. The law is static, and people are not. There will always be a way around the letter of the law, and that means that a country that forces itself to be bound by the letter of the law basically ends up not being ruled by laws at all.

      What the Supreme Court needs to do is issue a ruling that says, "We find that the tax shel

  • ...now that they've been told that they're not what they said they were, but actually a cable company, Aereo is looking to stay in business by paying the same money per channel to the broadcasters (who were happy about the ruling right up to this point) as the actual cable companies do, and the broadcasters are having a cow and claiming Aereo isn't a cable company.

  • Essentially the judge points out that a different case requires a different trial. This also means more arguments to study for appealing the Aereo ruling. If Dish's lawyers poke holes in Fox's arguments that led to the Aereo ruling, those arguments are fair game for Aereo's lawyers to use if they're applicable.
    • by Zordak (123132)

      Essentially the judge points out that a different case requires a different trial. This also means more arguments to study for appealing the Aereo ruling. If Dish's lawyers poke holes in Fox's arguments that led to the Aereo ruling, those arguments are fair game for Aereo's lawyers to use if they're applicable.

      I think you misunderstand the "Supreme" part of the "Supreme Court," and the legal doctrine of res judicata.

    • by stdarg (456557)

      Aereo lost at the Supreme Court, there's nowhere else to appeal. They could change their business model/technology slightly, re-open, and wait to get sued again though.

      • All that needs to be done is for Congress to repeal their protectionist law on the subject. We are in this mess because of case law from the 70s.
        • by stdarg (456557)

          True, it's silly that cable companies have to pay rebroadcast fees either. The content is available free to the subscriber, it shouldn't matter which middle men are involved. I would, however, distinguish between middle men who edit the broadcast (such as cable companies inserting their own commercials into a show, or even minor things like adding an overlay) versus those who simply retransmit it (even including things like transcoding or changing mediums).

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