Our Path Forward
blog.aereo.com
blog.aereo.com
Broadcasters: Aereo is a cable company!
Aereo: We're not a cable company!
Supreme court: We decree that Aereo is a cable company.
Aereo: Ok, I guess we're a cable company, so let's litigate under the statutes that apply to cable companies.
Broadcasters: But you said before that you weren't a cable company so therefore you aren't!
"Aereo has been careful to follow the law, and the Supreme Court announced a new and different rule governing Aereo's operations last week."
Their claim is that the lower courts had one rule, and the Supreme Court announced a new rule. Although I understand where they're coming from, I'm not sure I agree with that characterization: I believe it would be the position of the Supreme Court that their interpretation of the law has /always/ been the correct interpretation of the law, and that Aereo was simply misguided earlier (but that that does not excuse their failure to act in accordance with the law).
ABC are probably right that Aereo should have brought up the S111 argument before; this sort of thing, I understand, is common (the legalese for such being 'arguendo').
That the Supreme Court's interpretation was always correct does not in anyway contradict that the law as applied by the Second Circuit in the case was different, and doesn't say anything about whether the law applied by the Second Circuit previously was consistent with Second Circuit precedent that was binding on the District Court and thus appropriate for Aereo to use a basis for its arguments prior to the Supreme Court ruling.
The key issue, it seems to me, is whether Aereo previously argued facts that make it ineligible for S111 under the law now binding on the District Court, are whether it merely argued that it was not an entity as would be covered under S111 given a position on the law which has since been rejected by the Supreme Court and is therefore no longer valid.
No -- this idea is often viewed as a necessary fiction to maintain in order to give the courts legitimacy in the eyes of the public, but it does not have (and has never had) much traction among legal professionals.
The gist of Dworkin's position (with which I mostly agree) is this: in many cases where the existing written body of law does not literally cover the facts of a given case, a judge often (indeed, almost always) is nonetheless not free to simply decide the case however she wants. There is typically a best interpretation of that existing body of law (you might think of it as the law's "spirit," I guess) that, itself, has something like the force of law in that it binds judges. Thus, anyone with sufficient training can look at a case, and look at the laws on the books, and tell what the rule is (even if sometimes the required training considerable -- well beyond the ken of any normal lawyer).
And while you are correct that most lawyers today are not "legal realists" I think it is also clear that most are "Dworkinians" in that, when a hard case like Aereo comes up, they don't think that there simply is no rule yet, and that judges are free to do whatever they want. They see it as their task to educate the court about what the best interpretation of existing written law is and, thus, what the actual law is.
1. Cable companies offered a particular kind of service, and were subjected to a regulation which specifically calls out that it governs anyone using a particular technology.
2. Aereo (having read the law) decided to offer the same service using a different technology, so as to sidestep the technology-based regulation.
3. Aereo was sued on the theory that while the law says it governs those using a particular technology, it means that it governs anyone offering a particular service.
The law as written is much closer to Aereo's view of things, but they weren't seen as a slam dunk regardless, largely on the court-watching theory that judges don't like weaselly loopholes. But all of this is to say that this particular case was not seen (in the circles I read) as having any obvious outcome in any direction. It could be a textbook case illustrating the absurdity of "discovered" law.
I take slight issue with your characterization of Aereo's legal position, though (mostly having to do with your #2). The issue (as I understand it) was whether Aereo was infringing on the copyrights of the owners of broadcast TV content. Aereo was arguing neither that they were or were not like a cable company, because it could not possibly have helped them. If they were a cable company, they were SOL because they hadn't been paying the compulsory licensing fee by which cable companies get the license to broadcast content. If they weren't, this still would leave them in search of an explanation of why they weren't infringing on broadcasters' copyright. Their strategy, therefore, was to argue that they were simply, in essence, renting a broadcast antenna to allow home viewers to time/place shift broadcast TV. The analogy to cable operators came into it because the Supreme Court concluded, on the basis of the treatment of cable companies under the Telecommunications Act, that congress intended for any such service -- regardless of what technological contrivance they might use -- to require a license.
Under this approach to the case, I think the outcome is a bit clearer against Aereo. This is not to say that I think the issue is at all an easy one.
The interesting wrinkle is that the majority opinion [3] clearly likens Aereo to a cable company:
"But given Aereo’s overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here."
They don't explicitly say they're overruling the district court from Ivi, but it's also hard to say they didn't just declare Aereo to be a cable company, with all of the rights and responsibilities that comes with.
Aereo's response today is basically like, "well, that's not what we argued for, but we can work with that."
For the broadcasters, there's a lot less at stake this time, because the real threat of Aereo operating without paying retrans fees was that other TV providers might use similar technology to do the same. That would mean billions less in revenue. This is much less of an existential threat to their business model.
[1] http://www.supremecourt.gov/oral_arguments/argument_transcri...
[2] http://gigaom.com/2011/02/22/419-ivi-tv-loses-major-court-de...
[3] http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf
Edit: now that I think about it, there is room for a distinction between areas where case law hasn't ventured and exploitable holes in areas that case law has explored. But I'm interested in hearing if there's a more formal definition.
Unless maybe your point is that there weren't any lobbyists in the 1970s, that there were but they weren't corrupt like now, or that any political era you didn't hear about from CNN was some golden age? That's cute.
(i) After SCOTUS characterizes Aereo as cable company, Aereo appears willing to pay statutory content licensing fees that apply to cable companies. (ii) Aereo also seeks to retain the remote DVR feature of their service because the SCOTUS ruling only applies to live or near-live content transmission.
The former would create added costs, while the latter would obviously harm Aereo's value proposition because of the lack of live sporting events. Hope they find a way to survive.
NetBlazr sets up WiFi antenna's on rooftops now. While you set up my Internet antenna, please set up a TV antenna for me - one I can access streaming via the web. I only pay for Internet service and a one time TV antenna set up fee.
Now if this company, whether it be NetBlazr or Aereo wants to offer more channels via their web site where I watch my local channels then great! I just might buy more channels.
You are trading one set of ridiculous laws for another.
http://arstechnica.com/tech-policy/2009/05/federal-court-uph...
It most likely wouldn't be able to scale to cable company levels, but it would be a great small to mid-size local business. One that could be replicated in cities across the nation.