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Allaniis posted:A couple of interesting cases up for argument this week. Pom v. Coca Cola, ABC v Aereo, and Limelight v Akami. I really fail to see how Aereo is exempt from retrans fees like any other cable or satellite provider that airs broadcast channels. By charging for their service, they are retransmitting network television in the same way that a cable or sat service does, and should be forced to go through the same negotiations and retrans fees as any other provider. Granted, I'm biased because I am a broadcaster for a really tiny network who is really really pissed off at Wheeler and the FCC for a lot of the changes they've implemented in the very recent past (such as banning JSAs and forcing current ones to dismantle since we were about to sign a JSA that would keep us on the air rather than face a very real threat of going dark, plus the spectrum auction, etc. Conspiracy nutters are already popping up all over the broadcast world that with what Wheeler's FCC is doing in combination with the Aereo case that the Gubb'mint is trying to end OTA broadcasting). I'm all for Aereo's technology. I love the idea of a DVR for viewing broadcast, since working in TV I'd be a cord cutter if not for sports. I love the idea of being able to watch broadcast TV on my phone or on my laptop if I want to enjoy a nice day at the park AND be a couch potato at the same time. But how is this any different from Hulu, who pays retrans fees for their services? (granted, they pay next to nothing because they're owned by the networks so of course they negotiated neglible at best retrans fees, but the fact remains that there are retrans fees involved.) Aereo is profiting over OTA broadcasts. The issue has nothing to do with the technology like Aereo is trying to spin it. It has nothing to do with the concept - the concept of having an antenna that works like a central DVR like Cablevisions did back in the day, that's already been proven to be legal. the problem is that aereo is profiting, and the broadcasters that dish out the money for the programs don't see poo poo from those profits. We don't see poo poo from ad revenue since aereo (and most online) viewers don't count for ratings (nielsen is working on this though, but the +online ratings are still new and not doing all whole lot for increasing pricing), so the only hope we have of recouping anything on the viewers that we "lose" by switching their viewing to online only is in retrans fees.
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Apr 22, 2014 16:21
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ComradeCosmobot posted:Affirmative action is dead if states want it to be.All hail our post-racial reality! I think Scalia's concurring opinion was right on one point: "I find the question presented <in this case> only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits?" Assuming the EPC permits affirmative action (A Good Thing, I agree), I'm not as comfortable with the result that the EPC requires affirmative action. Holding otherwise would invert the typical affirmative action analysis: the judiciary would not be evaluating whether an affirmative action program goes too far in distinguishing between races, but the judiciary would now be required to evaluate whether a school's affirmative action program fails to go far enough in distinguishing between races. Edit: My problem with that scenario is that the judiciary would basically be making school policy as to what constitutes sufficient procedures designed to achieve racial integration as a constitutional matter, whereas now the Court simply does a thumbs up/thumbs down on whether any particular school policy goes too far in trying to achieve such equality. hobbesmaster posted:Thomas points out that the call wasn't made anonymously, the call was recorded along with the caller id and the caller freely gave their name but the prosecution in the case proceeded as if it was an anonymous call because they didn't want to subpoena the 911 operator and the caller for a suppression hearing. Scalia obsesses over the fact that the tip was anonymous and nobody would anonymously report being in a traffic accident. I mean, the majority opinion even accepts this premise: "Even assuming for present purposes that the 911 call was anonymous, see n. 1, supra, we conclude that the call bore adequate indicia of reliability for the officer to credit the caller’s account." Edit: In other words, everyone is treating the call as anonymous, and this opinion is predicated on that factual premise Green Crayons fucked around with this message at 16:28 on Apr 22, 2014 |
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Apr 22, 2014 16:22
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AA is for Quitters posted:Aereo is profiting over OTA broadcasts. The issue has nothing to do with the technology like Aereo is trying to spin it. It has nothing to do with the concept - the concept of having an antenna that works like a central DVR like Cablevisions did back in the day, that's already been proven to be legal. the problem is that aereo is profiting, and the broadcasters that dish out the money for the programs don't see poo poo from those profits. We don't see poo poo from ad revenue since aereo (and most online) viewers don't count for ratings (nielsen is working on this though, but the +online ratings are still new and not doing all whole lot for increasing pricing), so the only hope we have of recouping anything on the viewers that we "lose" by switching their viewing to online only is in retrans fees. AFAIK Aereo does not remove the commercials being broadcast. Assuming that is true broadcasters raise their rates for advertising and suddenly Aereo is paying for the broadcast.
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Apr 22, 2014 16:34
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Green Crayons posted:This is a basic rule of appellate procedure. Because the parties treated the call as anonymous in the trial court, and because no party is challenging that designation on appeal, an appellate court must also treat the call as anonymous. Was the call itself part of evidence? Scalia was saying it wasn't credible because someone that wished to remain an anonymous victim of a crime isn't trustworthy. The caller didn't wish to be anonymous, that call was made by the police which breaks that part down. Also RE the aereo thing, rebroadcasting within the same local area is legal so it should be interesting.
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Apr 22, 2014 16:34
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AA is for Quitters posted:We don't see poo poo from ad revenue since aereo (and most online) viewers don't count for ratings (nielsen is working on this though, but the +online ratings are still new and not doing all whole lot for increasing pricing), so the only hope we have of recouping anything on the viewers that we "lose" by switching their viewing to online only is in retrans fees. That's a problem between the broadcasters and their advertisers. How does it impact Aero's legal position in any way? How does Aero's profiting change the situation? I'm not aware of a general prohibition on reselling (in a more convenient form) something another party is giving away for free. Also, it's not like the networks couldn't have done the same thing with their deeper pockets if they weren't so complacent in sitting on their governmentally granted oligopoly.
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Apr 22, 2014 16:35
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Green Crayons posted:Only now they can pull you over even when you obey all the laws -- based on an "anonymous tip" that you were driving in the area and committed a traffic violation -- and then can claim to smell weed. This isn't much different from the way it works now, where they just lie about you breaking a minor traffic law to justify pulling you over.
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Apr 22, 2014 16:41
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hobbesmaster posted:Was the call itself part of evidence? Scalia was saying it wasn't credible because someone that wished to remain an anonymous victim of a crime isn't trustworthy. The caller didn't wish to be anonymous, that call was made by the police which breaks that part down. quote:1 At the suppression hearing, counsel for petitioners did not dispute that the reporting party identified herself by name in the 911 call recording. Because neither the caller nor the Humboldt County dispatcher who received the call was present at the hearing, however, the prosecution did not introduce the recording into evidence. The prosecution proceeded to treat the tip as anonymous, and the lower courts followed suit. See 2012 WL 4842651, *6 (Cal. Ct. App., Oct. 12, 2012). It doesn't matter what the caller did or didn't want in actuality, because what the record shows is what matters for purposes of an appellate decision. And the record shows that the call was treated as anonymous. So, if the parties treated the call as anonymous in the trial court, and if the majority is basing its ruling off of the premise that the call was anonymous, the dissent is free to attack the trustworthiness of a call as if that call was anonymous because everyone is treating that call as anonymous. Kro-Bar posted:This isn't much different from the way it works now, where they just lie about you breaking a minor traffic law to justify pulling you over.
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Apr 22, 2014 16:42
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It turns out that Kennedy thought Coca Cola's Pomegranate Juice was actually mostly pomegranate juice. Turns out he's a rube and not an average consumer! It's on page 40 of the transcript.
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Apr 22, 2014 17:04
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Allaniis posted:It turns out that Kennedy thought Coca Cola's Pomegranate Juice was actually mostly pomegranate juice. Turns out he's a rube and not an average consumer! It's on page 40 of the transcript. He's telling a joke.
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Apr 22, 2014 17:07
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KernelSlanders posted:That's a problem between the broadcasters and their advertisers. How does it impact Aero's legal position in any way? How does Aero's profiting change the situation? I'm not aware of a general prohibition on reselling (in a more convenient form) something another party is giving away for free. Also, it's not like the networks couldn't have done the same thing with their deeper pockets if they weren't so complacent in sitting on their governmentally granted oligopoly. How are broadcasters a governmentally granted oligopoly? The fact that there was limited spectrum space limiting the number of VHS channels which in turn limited the number of competitive channels for a long time? Since the digital transition it's hardly an oligopoly anymore, with tons and tons of small stations breaking in to the market, only to realize that broadcasting is not cheap and it's not easy. (this is actually part of my  -ing over the FCC with JSA's. A lot of smaller stations realized that it is not cheap to run a broadcast network, it is really really not cheap if you want to do news and not just bartered syndication, and a lot of small minority and women owned stations have been looking at JSA's with larger stations to defray costs. Wheeler disbanded them because they claimed that because large groups like Sinclair use JSA's to skirt the ownership rules it prevents minorities and women from owning those stations that Sinclair etc set up shell companies to hold the license. Steps should be taken to address the companies that skirt the rules, not get rid of the rule entirely and force the very people you're trying to encourage to get into broadcasting to start broadcasting...only to have their station go dark within two years as they go bankrupt)SCOTUS has already ruled multiple times that cable and satellite transmission of those same free signals counts as a public performance of copyrighted materials, and the key point was that it was because cable and satellite profited off of the copyright of the networks by broadcasting those signals and charging the end user for them. So yes, there is already a prohibition on reselling in a more convenient form something another party is giving away for free. Since you can get those channels for free over the air, and you're paying for them with basic cable (seriously look at the most "basic" tier your local cable and sattellite providers offer for like $15 a month. Then look at the OTA broadcasters in your area. It's the same group of channels). You're paying for the convenience of not having to mess with rabbit ears or risk losing reception if the weather is bad and the antenna can't get clear reception from the tower. Part of the problem with advertisers and online viewing is discerning who is watching the legal version of the broadcast with ad content included for ratings purposes, and who is watching a pirated copy of something that is ad free, or is watching a stream from a different station all the way across the country so that they don't have to wait three hours for it to broadcast on the west coast, and thus is getting different ad content then what is in their local market...which is why its so hard to track ratings for online viewing, which is why its so hard to work out deals with advertisers for online viewers. If there was a way to track who was viewing things legally and watching the ads for the correct market, it would be a different story. But nielsen ratings have no way to track this at the moment, short of letting Nielsen install tracking software on your computer, at which point every instance of copyright infringement you do engage in also becomes tracked. Aereo is actually something that helps with this, technology wise since it does lock you in to the local stations of your broadcast area. The problem like I said has nothing to do with the technology - it's a great idea. The problem is they're operating like a cable or satellite provider, yet think by being clever with the way they set themselves up they can get away with skipping on the retrans fees that cable and satellite operators are required to pay. Dr Jankenstein fucked around with this message at 17:25 on Apr 22, 2014 |
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Apr 22, 2014 17:09
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Hahahah, Roberts's concurrence is basically him wagging his finger at Sotomayor for daring to say that the Roberts policy position is ostrich-esque. His prestige drama alter ego will henceforth be Sandor Clegane, Game of Thrones, because he truly is the Worst poo poo in the Seven Kingdoms. The Warszawa fucked around with this message at 17:19 on Apr 22, 2014 |
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Apr 22, 2014 17:13
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Don't forget to update the OP. Does he keep the old one? Does the Chief Justice automatically get two prestige drama alter egos?
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Apr 22, 2014 17:20
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Every day I grow more befuddled at Roberts having joined the majority in the PPACA decision, given that he's obviously a loving animal.
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Apr 22, 2014 17:20
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mdemone posted:Every day I grow more befuddled at Roberts having joined the majority in the PPACA decision, given that he's obviously a loving animal. Insurance companies profit from the mandate. Roberts' rich buddies would be ruined by guaranteed issue and community pricing had he overturned the mandate. He had no problem overturning the part that required the states to give federal money to the poor. I guess insurance companies would have benefited somewhat from upholding that too, but sometimes you have to look past money and stick to your convictions that the poor should be ruthlessly hosed over?
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Apr 22, 2014 17:43
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The Warszawa posted:Hahahah, Roberts's concurrence is basically him wagging his finger at Sotomayor for daring to say that the Roberts policy position is ostrich-esque. I need a sound effect of a man in a wing-backed chair harrumphing through a huge mustache for every time I see his face.
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Apr 22, 2014 17:51
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mdemone posted:Every day I grow more befuddled at Roberts having joined the majority in the PPACA decision, given that he's obviously a loving animal. He originally didn't. But overturning Obamacare in its entirety was just too far for him and he pulled back. Remember, the dissent was going to overturn every single word of Obamacare because of the mandate. Had they been able to restrain themselves somewhat they might have kept him.
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Apr 22, 2014 17:54
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evilweasel posted:He originally didn't. But overturning Obamacare in its entirety was just too far for him and he pulled back. Remember, the dissent was going to overturn every single word of Obamacare because of the mandate. Had they been able to restrain themselves somewhat they might have kept him. Finally something for which we can thank the Scalitomas bloc, I guess.
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Apr 22, 2014 18:22
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AA is for Quitters posted:The problem like I said has nothing to do with the technology - it's a great idea. The problem is they're operating like a cable or satellite provider, yet think by being clever with the way they set themselves up they can get away with skipping on the retrans fees that cable and satellite operators are required to pay. Do rabbit-ear/Mohu Leaf/VHS manufacturers pay for retransmission fees? Have they ever? Maybe I'm just partial to Aereo's service but if they're going to rent me a personal antenna and dvr that's accessible over the internet, how is that different from me setting up a Mohu Leaf and personal pc with internet access/software? Just the profit that Aereo makes on providing access to an antenna & hard drive in some data center?
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Apr 22, 2014 18:33
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Thwomp posted:Do rabbit-ear/Mohu Leaf/VHS manufacturers pay for retransmission fees? Have they ever? Basically, if you view this as like having your own antenna, or like trying to use a legal loophole involving a hardware workaround. It's actually sort of a hard case where the rules were all set with absolutely no idea that something like this was possible (the language at issue, what a "public performance" is, was written in 1909 and then clarified in 1976). evilweasel fucked around with this message at 18:57 on Apr 22, 2014 |
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Apr 22, 2014 18:52
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evilweasel posted:Basically, if you view this as like having your own antenna, or like trying to use a legal loophole involving a hardware workaround. It's actually sort of a hard case where the rules were all set with absolutely no idea that something like this was possible. You don't have to have your own antenna though. Retransmission within the local area is explicitly legal.
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Apr 22, 2014 18:56
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hobbesmaster posted:You don't have to have your own antenna though. Retransmission within the local area is explicitly legal. Retransmission over a different medium is not. It's definitely an infringement for me to put up a single antenna and stream that over the internet to anyone who wants to see. Aereo is saying that because they have multiple antennas, it is not illegal.
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Apr 22, 2014 18:58
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evilweasel posted:Basically, if you view this as like having your own antenna, or like trying to use a legal loophole involving a hardware workaround. It's actually sort of a hard case where the rules were all set with absolutely no idea that something like this was possible (the language at issue, what a "public performance" is, was written in 1909 and then clarified in 1976). And it sounds like the justices asked a lot about the differences between private and public performances. Reports coming out now say that they questioned Aereo's purpose for using so many antennas but were also really concerned about going too broad. Which, again, returns it to the "hard case" difficultly in that how do you rule against something that is exploiting a legal loophole and century old language that is also limited in scope? Edit: evilweasel posted:Retransmission over a different medium is not. It's definitely an infringement for me to put up a single antenna and stream that over the internet to anyone who wants to see. Aereo is saying that because they have multiple antennas, it is not illegal. Except Aereo's argument is that it's not retransmitting the public broadcast. It's recording it, at the user's own direction (not Aereo's which is unlike the cable/sat providers which are explicitly retransmitting the broadcasts), and replaying it when the user wishes to view it (whether that's 30 seconds after or the following week). Thwomp fucked around with this message at 19:03 on Apr 22, 2014 |
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Apr 22, 2014 18:58
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Thwomp posted:And it sounds like the justices asked a lot about the differences between private and public performances. Reports coming out now say that they questioned Aereo's purpose for using so many antennas but were also really concerned about going too broad. Right. It's really easy to characterize this as merely an improvement over your own rabbit ears, or merely as a cynical workaround of obvious existing law. But whichever you pick it's surprisingly hard to write a rule that works.
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Apr 22, 2014 19:01
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evilweasel posted:Right. It's really easy to characterize this as merely an improvement over your own rabbit ears, or merely as a cynical workaround of obvious existing law. But whichever you pick it's surprisingly hard to write a rule that works. Being as I haven't watched over-the-air television in maybe a decade this might seem like a dumb question, but is it legal to rent an antenna to receive OTA broadcasts currently? For example, could an apartment complex have a dozen antennas installed on it's rooftop made available for tenants to rent and then charge them $5 each month for the service?
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Apr 22, 2014 21:09
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Mo_Steel posted:Being as I haven't watched over-the-air television in maybe a decade this might seem like a dumb question, but is it legal to rent an antenna to receive OTA broadcasts currently? For example, could an apartment complex have a dozen antennas installed on it's rooftop made available for tenants to rent and then charge them $5 each month for the service? Probably, but nobody's ever done it on a scale big enough to get a decision...until now.
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Apr 22, 2014 21:13
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evilweasel posted:Probably, but nobody's ever done it on a scale big enough to get a decision...until now. Yeah. I can definitely see what you're saying while I'm reading through the oral arguments by the Respondent. I don't really envy the Justices on this one because it looks like a goddamn mess. quote:JUSTICE GINSBURG: Mr. Frederick, would you clarify? If every other transmitter does pay a royalty maybe it's under compulsory license and you are the only player so far that doesn't pay any royalties at any stage Mo_Steel fucked around with this message at 21:30 on Apr 22, 2014 |
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Apr 22, 2014 21:26
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I wonder if, based on arguments today, the odds of the court punting on the issue increased significantly. Like punting to Congress to re-examine what public/private performances are defined as in light of new technologies.
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Apr 22, 2014 21:33
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I think the only way for that to work would be to punt in a way that decides for Aero. Neither Aero, nor any startup to come after it will have the lobbying power to force the issue on the Hill. If, they go the otherway and say something like, "These laws are out dated and don't protect the networks from new technology, but Congress could fix that," there's a chance of the issue actually getting resolved.
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Apr 22, 2014 21:39
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KernelSlanders posted:If, they go the otherway and say something like, "These laws are out dated and don't protect the networks from new technology, but Congress could fix that," there's a chance of the issue actually getting resolved. Extremely unlikely. quote:The “do nothing” Congress is preparing to do even less.
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Apr 22, 2014 22:23
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ulmont posted:Extremely unlikely. I wasn't saying it was likely, just that a ruling for ABC will not prod Congress into action while a ruling for Aero might.
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Apr 22, 2014 22:26
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ulmont posted:Extremely unlikely. Aereo is a business issue that won't have a natural left/right wing split, so it is the exact sort of thing that could actually get through congress. Its one business interest against another.
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Apr 22, 2014 22:48
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Thwomp posted:Except Aereo's argument is that it's not retransmitting the public broadcast. It's recording it, at the user's own direction (not Aereo's which is unlike the cable/sat providers which are explicitly retransmitting the broadcasts), and replaying it when the user wishes to view it (whether that's 30 seconds after or the following week). I didn't understand that this is how Aero operated, thanks for this. Can you clarify a bit more — is part of the issue that Aero is sending you OTA broadcasts from ANYWHERE in the country, in other words they can record sports games for you when, for example, they might be blacked out in your local market? But aside from that it's "just" an internet-based DVR service for OTA transmission that is freely available? Also, you'd think technology rulings would be the best example for the Supreme Court of just how ridiculous an originalist Constitutional approach can be. But I suppose it's more about "what does the jurisprudence of the 1780's say about this issue" since the issue itself couldn't possibly be addressed. And for the 1909 public performance ruling: were the defendants the Soggy Bottom Boys?
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Apr 22, 2014 22:53
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From the way they're offering it on a city by city basis I would guess they're setting up facilities in individual cities and only serving people in those cities with those specific facilities precisely to avoid any out-of-market issues.
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Apr 22, 2014 22:55
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Cocoa Ninja posted:I didn't understand that this is how Aero operated, thanks for this. I believe you can only sign up for your own city. I think I had to have a credit card with a New York billing zip code to sign up for NY aereo.
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Apr 22, 2014 23:12
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evilweasel posted:I believe you can only sign up for your own city. I think I had to have a credit card with a New York billing zip code to sign up for NY aereo. It's city specific, mainly because the Sony Betamax case was local and Aereo didn't want to push boundaries any more than they had to. Definitely no technical reason.
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Apr 22, 2014 23:15
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If you're wondering if Aereo did this intensely stupid thing or that technologically ridiculous thing to adhere to the frankly baffling state of regulations the answer is always yes. That's why SCOTUS granted cert, because it's not a question of whether Aereo is following regulations, but that they are and gosh darnit it just ain't fair, they're dodging the spirit of the law to ruin the livelihood of us poor broadcasters (who long since murdered the spirit of copyright law and buried it in a pool of lime in their basement, making the whole case frankly hilarious)
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Apr 22, 2014 23:46
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I like that some of the arguments are about how it should somehow be relevant that the networks use Nielsen and Nielsen doesn't know how to count these people. "We can't detect that they're watching our content, but ... we still don't want that tree to fall in the forest!" Is there relevant precedent about that? An industry chooses a given system, without regulatory requirement, and it's onerous to make that system adapt to someone's novel but legal behaviour -- does that fit into the legal calculus? (Does Nielsen also not handle DVRs? This seems like it should be the same as that case, from the intermediated-viewing measurement perspective.)
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Apr 23, 2014 00:10
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hobbesmaster posted:Scalia obsesses over the fact that the tip was anonymous and nobody would anonymously report being in a traffic accident. quote:Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. quote:Had the officers witnessed the petitioners violate a single traffic law, they would have had cause to stop the truck, Whren v. United States, 517 U. S. 806, 810 (1996), and this case would not be before us. And not only was the driving irreproachable, but the State offers no evidence to suggest that the petitioners even did anything suspicious, such as suddenly slowing down, pulling off to the side of the road, or turning somewhere to see whether they were being followed. Cf. Arvizu, supra, at 270–271, 277 (concluding that an officer’s suspicion of criminality was enhanced when the driver, upon seeing that he was being followed, “slowed dramatically,” “appeared stiff,” and “seemed to be trying to pretend” that the patrol car was not there). Elotana fucked around with this message at 01:07 on Apr 23, 2014 |
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Apr 23, 2014 01:04
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UberJew posted:If you're wondering if Aereo did this intensely stupid thing or that technologically ridiculous thing to adhere to the frankly baffling state of regulations the answer is always yes. That's why SCOTUS granted cert, because it's not a question of whether Aereo is following regulations, but that they are and gosh darnit it just ain't fair, they're dodging the spirit of the law to ruin the livelihood of us poor broadcasters (who long since murdered the spirit of copyright law and buried it in a pool of lime in their basement, making the whole case frankly hilarious) Well, that and because Aereo only adheres to regulations if you accept Cablevision as controlling, which it isn't in other circuits. And that assumes Aereo doesn't violate retransmission regulations - since they WILL transmit out of market (to anyone with an in market zip code on their credit card), that's a distinct difference from the Cablevision situation.
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Apr 23, 2014 02:12
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Elotana posted:Scalia obsesses over this because he's not an idiot and knows full well that, since it's anonymous according to the official appellate record, the majority's decision is good law now for factually anonymous tips as well. So if you turn to look at a cop car you're suspicious, and if you don't turn to look you're suspicious because you're trying to pretend they're not there. 
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Apr 23, 2014 02:40
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