OK

Aereo is a new $12 per month service currently available in certain cities on the East coast. The company maintains thousands of tiny dime size antennas which their subscribers can rent to watch and record over-the-air broadcast TV delivered over the internet. When you subscribe you are given access to your own antenna, no one else can use it but you. You also have your own RS-DVR (Remote Service DVR) in the Clouds. So, you can choose to watch a TV show in real time, or record it to watch later (time shifting).

The networks are furious. They claim that it is a violation of their copyrights. In their estimate, what Aereo is doing is a public performance of their property. So, they sued in the Second Circuit Court. In fact there are two suits.

NYT: Media Decoder

The first suit was filed by the owners of stations affiliated with Fox, the CW, Univision and PBS. The second suit was filed by the owners of stations affiliated with ABC, CBS and NBC.

Together, the two suits represent virtually all of the major television stations in New York City, the only market where Aereo is set to operate. The stations are owned by major media companies like Comcast, the Walt Disney Company and the News Corporation.

Why do I care? For at least two reasons. First, I feel that the consumer should have control of the content they want to watch. The current cable TV model forces you to pay for channels you never watch and dictates what and when you can view their content. The second reason has to do with Cloud computing. How private is your Cloud drive? Maybe not as much as you think. But we will get back to that.

FOX, not surprisingly, is apocalyptic about it claiming that they will stop broadcasting altogether and go subscription only if Aereo prevails. And it looks more and more that Aereo will prevail. After filing their suit, they asked the court to shut down Aereo until the suit was decided. The courts turned them down flat. Citing  Cablevision (Cartoon Network, LP v. CSC Holdings, Inc.) U.S. District Judge Alison Nathan in Manhattan refused to preliminarily enjoin Aereo's service, ruling that the networks' copyright claims were likely to fail.

Read more: http://www.law.com/...

As background here is the Cablevison story in brief. Cablevision started a RS-DVR service. The DVR was not physically in the subscriber's home, it was a virtual DVR on Cablevisons servers. The networks claimed that this was a public performance, strictly forbidden in copyright law. Cablevision argued that it was not. Nothing happened until the customer click on something. The customer had his own hard-drive space that was not accessible to other users. In short, it was the same as having a VCR in ones home. The court agreed.

Wikipedia

The appeals court found that a) the automated copying of content at user request did not constitute direct infringement, b) Time shifting, or replaying content to the original audience, did not constitute public performance, and c) the copying of streaming content for the purposes of buffering did not itself constitute unlawful copying.
A sidebar.

Can you own hardware or virtual machines that are not physically in your home? I think so, and it is going to become more common. As an example let me introduce you to a really cool service offered by NASA and Harvard. MicroObservatory Robotic Telescope Network

MicroObservatory is a network of automated telescopes that can be controlled over the Internet. The telescopes were developed by scientists and educators at the Harvard-Smithsonian Center for Astrophysics and were designed to enable youth nationwide to investigate the wonders of the deep sky from their classrooms or after-school centers. They are located and maintained at observatories affiliated with the Center for Astrophysics, including the Harvard College Observatory in Cambridge, MA and the Whipple Observatory in Amado, AZ.

The MicroObservatory remote observing network is composed of several 3-foot-tall reflecting telescopes, each of which has a 6-inch mirror to capture the light from distant objects in space. Instead of an eyepiece, the MicroObservatory telescopes focus the collected light onto a CCD detector (an electronic chip like that in a digital camera) that records the image as a picture file with 650 x 500 pixels.

It is a bit different from what Aereo is doing, but not by much. In this case the use of the telescope is offered free, but just like Aereo's antennas, you have complete control of the remote hardware. The images are emailed directly to you and are not part of a public performance.

Modern technology allows you to control your thermostat remotely, and even start your car. Cloud computing allows you to store your data on hard-drives that are not physically in you computer. This trend will grow.  I can open and close my blinds in Portland while on vacation in Hawaii. I don't have to be physically in Portland to open my blinds. Is an antenna any different?

Back to our law suites.

One of the things the networks and cable companies fear most are the 'cord cutters.' It is still limited in total numbers, but there is a movement afoot among customers to cut the cord. Why pay for cable when for a fraction of the cost you can subscribe to Hulu, Netflix or Amazon Prime and get your local channels for free from an antenna?  You don't have to pay for channels like HSN, QVC or the Golf Network which you never watch. You are in control of what you watch and when. They don't like that. It limits the potential profits they thinks they can make if they dictate what it is you get. You can't have it your way; you will have it my way or you don't get the son of a bitch. That seems to be their position. Like I mentioned earlier FOX is threatening to just stop broadcasting, and CBS is threatening the same. The industry is telling us that if you don't do what they say, you can't watch the Super Bowl. Of course they will not do that. The advertising dollars are just too big.

Another sidebar.

In 2003 the Movie Studio attempted to protect public domain movies and TV shows by claiming that releasing them for free would limit the profit they could make from the sale of the 'physical DVD.' In case you did not know it, there is by now a large library of public domain movies and TV shows. Here is a list of movies from iMDB

TV shows like The Beverley Hillbillies are also in public domain, but be careful, the theme songs are still often under copyright protection. Theoretically you can freely distribute The Beverley Hillbillies, sans the theme song, and make a profit of the sale of the physical DVD. That is what the studios do. They just don't like it when YOU do it.

Given the ruling in Cablevision, I think Aereo is likely to to win in the Second Circuit Court, but – there is always a but – a ruling in the Ninth Circuit Court is in conflict with that. CommomLawBlog: Judge Puts the Cuffs on AereoKiller
Judge Wu surmised that the Ninth Circuit – whose decisions are binding on Wu – would have come out differently in the Cablevision case. His disagreement with the Second Circuit is based on an alternate interpretation of the Copyright Act. In his densely reasoned opinion, Judge Wu parsed the meaning of terms such as “transmission”, “copy”, “work”, “performance” and “performance of a performance”. He concluded that, in Cablevision, the Second Circuit placed too much importance on whether the end user (i.e., the Aereo subscriber/viewer) was ultimately receiving a public performance of a transmission; the key issue should have been whether the end user is receiving a public performance of a copyrighted work “irrespective of which copy of the work the transmission is made from”. 

As the Judge explained:
Very few people gather around their oscilloscopes to admire the sinusoidal waves of a television broadcast transmission. People are interested in watching the performance of the work. And it is the public performance of the copyrighted work with which the Copyright Act, by its express language, is concerned. Thus, Cablevision’s focus on the uniqueness of the individual copy from which a transmission is made is not commanded by the statute.

So, in all likelihood, this is heading to the Supreme Court, and how they rule will have consequences for Cloud computing too. One of the issue is third party control of hardware and data owned remotely by a consumer. If the Supreme Court rules that corporations have a say in what you can store and do with data on your cloud drive than we lose control of our own property, not to mention the chilling effect of technology.
One last sidebar, but an important one.

Does NSA have a right to look at your hardware if it is in the  “possession, custody, or control” of a U.S. Based company or a company with branches or otherwise have sufficient contacts in the US?

The Justice Department claims that they can access the information provided to third parties for your cloud computing. So it is just not your email and phone calls the NSA is tracking, it is your Cloud drive too.

EFF: Department of Justice Misdirection on Cloud Computing and Privacy

In the end, no amount of spin aimed at international audiences can hide the underlying facts. The US government believes that when you use a US-based cloud service, you have no ability to prevent the government from having access without a warrant under either the Stored Communications Act or the constitution. Lawyers call this the "third party problem" and we were heartened earlier this week when Supreme Court Justice Sotomayor strongly criticized the position that the government has been taking in cases across the US. 

Until this problem is fixed, US DOJ officials' reassurances about the privacy protections of US cloud computing services should be met with strong skepticism, both internationally and here at home.

How we go forward from here is crucial. There is a need to protect copyrighted material. But there is also the need to balance that with the consumers rights to pursue the content they want and to encourage technical innovation. And, perhaps most importantly, we need to examine individual privacy rights, not just from the government, but from private sector companies as well. This is not something we can just leave up to the courts, the legislator has to become involved too.

I suggest we begin with what information third parties are allowed to gather from us. If it is limited in scope, the data the government can request from the third party is also limited.

Originally posted to se portland on Sat Jul 20, 2013 at 11:48 AM PDT.

Also republished by Community Spotlight.

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