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Comment by untog | Hacker News Reader

I do sympathise with both sides, here. Right now, broadcast TV companies are able to charge cable companies "retransmission fees" in order to carry their channels. It's a decent revenue stream. Aereo have side-stepped this for their purposes.

Aereo are entitled to do this. But I don't blame the broadcast companies for freaking out - if Aereo can do this then the cable companies can too - the broadcast networks will lose their retransmission fee revenue (at a time when they're not exactly swimming in cash anyway) and the cable companies get to boost their profits even more. Which they don't deserve.

The only other solution for the broadcast companies will be to switch off their antenna broadcasts, which would also be a big shame.

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They don't have a right to a revenue stream just because it is there. It really should have little-to-no bearing on the case other than the networks' eargerness to pursue.

In my opinion it wouldn't be bad if the networks had to pay the cable companies to get carried--after all, they are essentially just improving reception for viewers, letting the networks display more ads than they otherwise could.

The broadcast networks paying the cable networks would all but guarantee they go bankrupt. So the most likely answer here is that NBC, ABC, etc. just shut off their antenna broadcasts. Which would be a real shame.

They don't have a right to a revenue stream just because it is there.

True. But I'd argue that Aereo's $7 a month charge to rebroadcast content they have nothing to do with is a dubious revenue stream, too.

That content is broadcast for $0. It's logically similar to renting an antenna on your roof and a cable connecting that to the TV. Considering that antennas are ugly, and not the cheapest... antenna-invisibility services are a reasonable thing to pay money for.

If I recorded NBC TV shows, burnt them to DVD and sold them on for profit I would be violating the law, despite it also being "logically similar". It isn't as simple as that broadcast being "for $0".

Yes, but then you'd be unfairly duplicating the content without permission.

With Aereo, you are renting the antenna (just far away) and streaming from that. Every customer has an antenna. It is the logical scaling up of a currently allowable business model. It has the same end result as many less savory models, but it is not illegal at all.

Whether it should continue to be legal is up for debate, but right now it's squarely in the right.

Oh sure, I agree. I think that what Aereo is doing is legally correct. As you say, the question of whether it should be at least deserves some discussion.

You could argue that Aereo's copying of the received signal to an output stream is also unlicensed duplication.

Well that's for the Supreme Court to decide now but logically speaking, it's not an unlicensed duplication. It's not duplicated at all. The broadcast is recorded once, played back by the original recorder, and is not distributed as it's not being transferred from one entity to another.

The whole argument obviously relies on the premise that Areo is renting you the antenna, so you're the one doing the recording using rented equipment far away.

But then what of the people that have antennas at home, record shows for later playback (which is legal)? This is the same concept, just remote.

In the 'ideal' scenario where you:

1. record a broadcast onto a single disc for time-shifting purposes

2. never watch the broadcast or disc

3. do not edit to remove commercials or make any changes from the original form

4. later sell the disc

5. no longer have a copy

What law are you violating?

...copyright law?

Which step violates which aspect of copyright law?

Explain in a way that takes into account the fact that cloud DVRs were ruled to be acceptable.

4. later sell the disc

I'm a little unsure what you think copyright law is. It has personal use exemptions that allow you to time-shift content. You are not allowed to sell that content.

I can sell my factory-produced legal copies. Why can't I sell my self-produced legal copies?

Does the first sale doctrine not apply when the original was $0?

I can sell my factory-produced legal copies

Your factory-produced legal copies of what? NBC's content? No you can't. Making DVDs in a factory doesn't magically assign copyright to you. You need NBC's permission.

I'm talking about a DVD purchased in a store that NBC contracted to be made. So you haven't answered the question.

Well, I have, in a roundabout way. That DVD was made with the permission of the copyright holder. Your home produced one was not.

I don't need their permission to record a broadcast. I only need their permission to make copies beyond that, depending on circumstances that don't matter because I'm not doing that in the hypothetical.

I don't need their permission to record a broadcast.

Correct.

I only need their permission to make copies beyond that

And to sell any of your recordings.

And to sell any of your recordings.

Can you give me references for this? As far as I understand it the broadcaster is doing the first distribution, so the copyright holder cannot restrict my ability to resell the (single) copy they gave me.

Whether or not first sale doctrine applies here or not is an interesting question, which I believe is unsettled.

I'm pretty sure it can be argued convincingly either way. I'm sure of that because when I was in law school, it was this very question that my copyright professor asked on the day he picked me to be the Socratic method victim, and they always pick questions that can go either way. :-) I don't remember which way I argued, but I think I argued that first sale applied.

They are reboadcasting something that was already broadcast to the public for free, although time shifted and in a different medium. I see it as the same as selling open source software.

They are not rebroadcasting. Only the person renting that particular antenna sees the program recorded from that specific antenna with that specific recording device.

Presumably, the only reason why they have multiple antennas and recording devices is so that the words "copy" and "rebroadcast" do not apply.

They claim they are not rebroadcasting but words sometimes have legal definitions and sometimes those definitions are weird. Or, if they're not defined there's room for lawyers to argue and judges to decide.

By recording from one link layer and transmitting on another they have to be doing at least one operation that can be considered rebroadcasting. Like if I was on two phones relaying messages from one person to another.

They aren't broadcasting, they are transmitting the recording (that you directed them to make) to you. It still should be considered a private performance since the recording was made at your direction and is visible to only you. They aren't taking any control of the equipment, just giving you access to a remote DVR.

If bridging between two wires is rebroadcasting, so too would it be rebroadcasting to place a DVR or VCR on the wire between antenna and television. The SCotUS has already ruled that this is not the case.

When I think broadcast, I envision fanout. There would have to be more than one outgoing wire.

The SCotUS has already ruled that this is not the case.

I believe what they've ruled is that there is an exemption for certain personal uses.

Can cable companies really do this? I don't think they have the bandwidth. Doesn't Aereo give you the data from the antenna you rented? For n people watching the Super Bowl a cable company wanting to take advantage of the "Aereo loophole" would have to actually send n copies down the wire, requiring quite a bit of compression at best.

If the end user can receive aereo content then the bandwidth exists for the cable company to deliver the same.

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