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I really don't see anyone getting hurt but Aero when the SCOTUS tells them to know it off.
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Apr 23, 2014 02:52
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Devor posted: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. None of this is really new. A smart cop could always find pretext to search you just like a smart AUSA could always find something to charge you with. The hard fourth amendment cases tend to come about because police don't always act intelligently.
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Apr 23, 2014 03:02
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Cheekio posted:I really don't see anyone getting hurt but Aero when the SCOTUS tells them to know it off. Depends on how the opinion is written. SCOTUS can in fact pretty easily write one that kills the entire concept of cloud storage, though I doubt Roberts wants to do so.
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Apr 23, 2014 03:30
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UberJew posted:Depends on how the opinion is written. SCOTUS can in fact pretty easily write one that kills the entire concept of cloud storage, though I doubt Roberts wants to do so. I think the Justices are quite aware of the cloud storage issue, which is why they will center the whole thing on retransmission consent instead, find Aereo to be a MVPD, and thereby allow the broadcasters to demand fees for transmission ( your "free in a local market" thing is a misreading of must-carry - broadcasters can force MVPDs in their local market to carry them but are barred from receiving fees for it; otherwise, the MVPD has to pay the retransmission fees.) Avoids all the public performance issues entirely, doesn't touch cloud services because it's a separate statutory regime.
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Apr 23, 2014 03:34
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Kalman posted: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. Allaniis fucked around with this message at 04:07 on Apr 23, 2014 |
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Apr 23, 2014 04:04
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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? Could someone start one now with many antennas and pull it off? Sure... if Aero wins.
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Apr 23, 2014 04:34
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I don't usually follow this thread, but the Supreme Court upheld a Michigan constitutional amendment that bans affirmative action in admissions to the state’s public universities. As they tend to do, the ACLU has a statement riddled with  :quote:“This case is ultimately about whether students of color in Michigan are allowed to compete on the same playing field as all other students,” Mark Rosenbaum, the American Civil Liberties Union attorney who argued the case before the Supreme Court last fall, said in a statement. “Today, the Supreme Court said they are not.” Students in color should be allowed to compete on the same playing field! We're against ensuring that race isn't a factor!
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Apr 23, 2014 05:49
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The case is about political process doctrine - what the ACLU is saying is that if legacies or athletes or polyglots or whatever want to have that considered by admissions, they can appeal to the Board of Trustees or the Admissions Committee or whoever sets that policy at UofM. If racial minorities want that, they have to get the state constitution amended. Political process doctrine is the answer to the quintessential problem of having two wolves and a sheep vote on what to have for dinner. The other side of it is that race is a factor literally everywhere else before, during, and after the admissions process, so barring policies that exist to counteract the effects of that persistent discrimination is just furthering invidious discrimination. Sotomayor pretty much explains it all (and more) in her 58-page dissent, which was apparently so mean that Chief Justice Roberts had to whine about it in a separate concurrence like a big baby. The Warszawa fucked around with this message at 06:00 on Apr 23, 2014 |
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Apr 23, 2014 05:54
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Allaniis posted:Not quite true. Aereo also does an IP check and blocks you if it detects an IP not located in the correct zipcode sector, even if you are a subscriber. Not actually relevant to retransmission anyway, for the reasons I explained further on, but good to know - thanks!
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Apr 23, 2014 06:17
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The Warszawa posted:Political process doctrine is the answer to the quintessential problem of having two wolves and a sheep vote on what to have for dinner. As I understand it, though, the Court wasn't tasked with determining the racial aspects of affirmative action. They were only concerned with the ability for higher courts to overrule a voted-on policy.
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Apr 23, 2014 06:29
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MisterBibs posted:As I understand it, though, the Court wasn't tasked with determining the racial aspects of affirmative action. They were only concerned with the ability for higher courts to overrule a voted-on policy. Right, that's the political process doctrine: when the majority votes for a policy that inures to the detriment of racial minorities in a way that places additional burdens on that minority in remedying that detriment, something's rotten in Ann Arbor. Basically, the majority voted to change the rules for minority applicants, but not for every other applicant group - not just in the sense that race is no longer considered in the constitutionally permissible way, but that if you wanted the committee to consider race in a constitutionally permissible way, you would have to amend the state constitution and for any other group, you would just appeal to the relevant university bodies - and that raises Equal Protection questions under Hunter/Seattle. This case didn't get to the merits of affirmative action doctrine itself, but it's impossible to remove it from that context when understanding the opinions and the underlying politics. OP has been updated. The Warszawa fucked around with this message at 06:46 on Apr 23, 2014 |
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Apr 23, 2014 06:33
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The Warszawa posted:This case didn't get to the merits of affirmative action doctrine itself, but it's impossible to remove it from that context when understanding the opinions and the underlying politics. Isn't that what the courts did, though? The majority opinion dealt with the actual case, whereas the dissent focused on the extraneous racial aspects. It's only impossible to separate the two if you subscribe to the "The system is racist, you're racist, the ground is racist, and I'm pretty sure half the air molecules I breathed in are racist" mentality.
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Apr 23, 2014 06:48
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MisterBibs posted:Isn't that what the courts did, though? The majority opinion dealt with the actual case, whereas the dissent focused on the extraneous racial aspects. The racial aspects aren't "extraneous" in political process doctrine, that's why the doctrine exists. The dissent focuses on how this is changing up the rules for minorities specifically and exclusively, and also clowns on the obvious ostriching that Kennedy is engaged in, backed by Roberts and Alito. quote:It's only impossible to separate the two if you subscribe to the "The system is racist, you're racist, the ground is racist, and I'm pretty sure half the air molecules I breathed in are racist" mentality. The system is pretty racist. Not sure how you, the ground, or any quantity of air molecules relate to it. When I talk about understanding the opinions and the underlying politics, I mean that when one side of the argument involves any attempt to consider ameliorating racial discrimination, you can be sure you'll find Chief Justice Roberts on the other side of it.
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Apr 23, 2014 06:56
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Will Fisher be coming back to SCOTUS? From what I can remember they basically kicked it back down without really resolving anything, but affirmative action stuff today is just a mess.
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Apr 23, 2014 06:57
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Badger of Basra posted:Will Fisher be coming back to SCOTUS? From what I can remember they basically kicked it back down without really resolving anything, but affirmative action stuff today is just a mess. Yeah, that was a classic punt. I doubt it will come back - the facts were so bad that even Roberts couldn't get five votes to strike down affirmative action. Moreover, the case skirted mootness the first time around, so it only gets weirder to take her case specifically when a cottage industry has sprung up to locate disgruntled white people to challenge affirmative action. Abigail Fisher singlehandedly won affirmative action a stay of execution by being the worst plaintiff possible.
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Apr 23, 2014 06:58
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MisterBibs posted:Isn't that what the courts did, though? The majority opinion dealt with the actual case, whereas the dissent focused on the extraneous racial aspects. But the equal protection issue was the actual case.  What was the actual case in your mind then if not that? Whether Missouri voters can amend their constitution or not? The Warszawa posted:Abigail Fisher singlehandedly won affirmative action a stay of execution by being the worst plaintiff possible. The system works! 
VitalSigns fucked around with this message at 11:16 on Apr 23, 2014 |
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Apr 23, 2014 07:02
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Given the tone in the Roberts concurrence towards Sotomayor I cannot imagine how rough the relationships between the justices are at this point.
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Apr 23, 2014 09:35
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Grapplejack posted:Given the tone in the Roberts concurrence towards Sotomayor I cannot imagine how rough the relationships between the justices are at this point. Yeeeaaah, I have an idea that the athmosphere between Roberts and both Sotomayor and Ginsburg might be a little chilly...
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Apr 23, 2014 14:12
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The Warszawa posted:Yeah, that was a classic punt. I doubt it will come back - the facts were so bad that even Roberts couldn't get five votes to strike down affirmative action. Moreover, the case skirted mootness the first time around, so it only gets weirder to take her case specifically when a cottage industry has sprung up to locate disgruntled white people to challenge affirmative action. quote:The group promises to pay all expenses and notes that in its previous litigation, no college applicant had to testify How is that possible? Also, it suggests a meta strategy for the university defendants.
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Apr 23, 2014 14:27
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KernelSlanders posted:How is that possible? Also, it suggests a meta strategy for the university defendants.
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Apr 23, 2014 15:13
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Green Crayons posted:Which part are you questioning as possible? That the (individual) plaintiff in a major civil suit against a billion-dollar institution wouldn't have to testify.
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Apr 23, 2014 15:28
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If the cases are being resolved prior to trial (no trial testimony) and prior to summary judgment (no deposition testimony) -- so, say, on a 12(b)(6) motion, I guess? -- then I can see how a plaintiff would not be required to testify. (I don't know how at what stage in the litigation process these cases are being resolved.)
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Apr 23, 2014 15:42
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AA is for Quitters posted: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. Tracking how many people are watching your legal stream and where they're located when they're watching it is super trivial. Not sure what Nielsen has to do with it other than being an embodiment of the complete backwardness of the broadcast industry; any competent streaming site is already capable of doing it more reliabily than they ever will. YouTube doesn't need to install software on your computer to track how many people watch a video, how many of those people were served any particular ad, or where those people were located, after all.
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Apr 23, 2014 15:53
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The Warszawa posted:Yeah, that was a classic punt. I doubt it will come back - the facts were so bad that even Roberts couldn't get five votes to strike down affirmative action. Moreover, the case skirted mootness the first time around, so it only gets weirder to take her case specifically when a cottage industry has sprung up to locate disgruntled white people to challenge affirmative action. They might have better luck with an Asian-American plaintiff that got rejected despite test scores and grades above the median of students accepted at a school that practices affirmative action.
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Apr 23, 2014 16:12
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KernelSlanders posted:That the (individual) plaintiff in a major civil suit against a billion-dollar institution wouldn't have to testify. Why would they have to testify? What issue do you think their testimony would be relevant for?
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Apr 23, 2014 16:38
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evilweasel posted:Why would they have to testify? What issue do you think their testimony would be relevant for? Foundation for all the application materials to be admitted, especially the essay. Also I'd think the university would want to question him/her about qualifications since he/she alleges she would have been admitted but for her race. Maybe for UT they can get all the admission policies from FOIA, but against Harvard they'll need discovery. Once that happens how do you not depose the plaintiff.
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Apr 23, 2014 17:00
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KernelSlanders posted:Foundation for all the application materials to be admitted, especially the essay. Also I'd think the university would want to question him/her about qualifications since he/she alleges she would have been admitted but for her race. Maybe for UT they can get all the admission policies from FOIA, but against Harvard they'll need discovery. Once that happens how do you not depose the plaintiff. The application is the basis for acceptance/rejection. I don't think the University's position is "the student was lying on their application, and our overworked admissions team was able to deduce that and denied him/her", so there's no need to grill the student. "I see here you listed yourself as treasurer of the Chess Club. YOUR CHESS CLUB IS ACTUALLY A HOUSE OF LIES"
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Apr 23, 2014 17:10
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gret posted:They might have better luck with an Asian-American plaintiff that got rejected despite test scores and grades above the median of students accepted at a school that practices affirmative action. They are actually specifically focused on Asian-American students, in the case of Harvard. "Looking for white people" was only The Warszawa's characterization http://www.projectonfairrepresentation.org/wp-content/uploads/2008/08/POFR-Harvard-UNC-Wisconsin.pdf quote:POFR believes that Harvard University, specifically, is discriminating against Asian-American students by using a “quota” or “ceiling” to limit their admission to the university. esquilax fucked around with this message at 17:13 on Apr 23, 2014 |
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Apr 23, 2014 17:11
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KernelSlanders posted:Foundation for all the application materials to be admitted, especially the essay. Also I'd think the university would want to question him/her about qualifications since he/she alleges she would have been admitted but for her race. Maybe for UT they can get all the admission policies from FOIA, but against Harvard they'll need discovery. Once that happens how do you not depose the plaintiff. You'd stipulate to the accuracy of the application materials and essay as they'd be uncontested. As for what the college would get by their testimony, that they're a terrible person or something is irrelevant to the university's decision to deny admission if the university didn't know about it at the time. Depositions aren't testimony though so while the plaintiff might need to be deposed that doesn't mean they'll testify. The point of the case is arguing the plaintiff wasn't admitted because of their race. All the relevant testimony will be university officials who made the decisions, not the plaintiff. The defense has nothing obvious to gain by calling the plaintiff as a witness.
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Apr 23, 2014 17:19
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I really do sympathize with you, but the fact that the networks are planning to deal with a possible loss in Aero by giving their users nearly the same service really says all I need to know to want Aero to win. Aero the company might not survive the competition, but I don't care because getting poked in the eye and forced into acknowledging the new medium available to them might be a valuable lesson for the broadcasters, especially if it keeps happening.
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Apr 23, 2014 18:20
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Kalman posted:I think the Justices are quite aware of the cloud storage issue, which is why they will center the whole thing on retransmission consent instead, find Aereo to be a MVPD, and thereby allow the broadcasters to demand fees for transmission ( your "free in a local market" thing is a misreading of must-carry - broadcasters can force MVPDs in their local market to carry them but are barred from receiving fees for it; otherwise, the MVPD has to pay the retransmission fees.) If you're retransmitting content when you're streaming video from your antenna to your mobile device, you're also retransmitting content when you stream your CD rips from your MyBook Live hard drive or from your TiVo. In a practical sense there is no difference whether the first "transmission" of the content takes place over the airwaves or a physical disk, or whether you're streaming live TV or a recording from your TiVo, it's all just ways to send data with varying amounts of latency. Except for services that specifically stream media direct from a service provider (eg Amazon or iTunes) it's impossible to do any sort of "cloud" product involving media and not have it be "retransmitted" somehow. Paul MaudDib fucked around with this message at 19:38 on Apr 23, 2014 |
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Apr 23, 2014 19:30
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esquilax posted:They are actually specifically focused on Asian-American students, in the case of Harvard. "Looking for white people" was only The Warszawa's characterization I apologize, it was late and I thought it was clear that I was speaking to why Fisher probably won't come up to SCOTUS - I meant to demonstrate that POFR was looking for better plaintiffs with Fisher's profile (disgruntled white applicant), not to imply that they were only looking for white plaintiffs. I can see why you read it that way, so sorry for being unclear. I'm phone posting so I'll have to be brief, but an Asian American plaintiff will probably fare worse than a white plaintiff because it has the have-your-cake-and-eat-it-too solution Kennedy adores. (Namely, that the negative action taken to depress Asian American enrollment is invidious discrimination, but it's independent of race-conscious affirmative action because it only could be affected by it if there are impermissible guarantees of white enrollment.) I mean, assuming Kennedy is looking for a middle ground.
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Apr 23, 2014 19:33
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Paul MaudDib posted:If you're retransmitting content when you're streaming video from your antenna to your mobile device, you're also retransmitting content when you stream your CD rips from your MyBook Live hard drive or from your TiVo. Except that there is a legal difference between retransmission a user does themself and retransmission performed by a third party. Mike Risch had a good post on Aereo yesterday: http://madisonian.net/2014/04/22/three-pictures-aereo/
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Apr 23, 2014 19:37
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Kalman posted:Except that there is a legal difference between retransmission a user does themself and retransmission performed by a third party. What is the difference? Let's say I rent my TiVo from my cable company (companies like DirecTV rent DVRs which can do "cloud streaming"). Then a third party owns the device which is streaming me media, therefore the third party is retransmitting? How is that any different from Aereo renting DVRs, except for the fact that in the first case the cable company is the party doing the renting and makes the profit? We've established that the physical location of the device makes no difference, so it doesn't matter whether the DVR is in my home or in an office somewhere. Looks an awful lot like they're trying to shut down the competition for horning in on their DVR rental business. Plus the usual bullheadedness about sticking to 60s-era methods of content delivery of course. Or to bring it back to cloud services, here's another example. Let's say I have a MyBook Live disk and I stream my music from it. I own the device, this is OK. Then one day it breaks, instead I upload my CD rips to Dropbox and stream from their server. They are performing retransmission, and this is not OK? (imagine instead of cd-rips I recorded a set from the radio or downloaded them from iTunes if that's a more suitable "transmission" for you). In both cases the "retransmission" is initiated by a user by performing a connection to some server, no matter what kind it is or who owns it, that's the act of performing transmission to me in this situation. Without a user connected to watch it, the box isn't going to retransmit a damned thing. Personal streaming is obviously a private performance. That's in contrast to a radio or TV rebroadcast, which happens whether someone's connected or not. It really seems identical to the Betamax cases (or recording cassettes off the radio), except in the finest legal tradition they've thrown in "with a computer!" and demanded that everything change. Paul MaudDib fucked around with this message at 22:16 on Apr 23, 2014 |
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Apr 23, 2014 19:47
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evilweasel posted:You'd stipulate to the accuracy of the application materials and essay as they'd be uncontested. As for what the college would get by their testimony, that they're a terrible person or something is irrelevant to the university's decision to deny admission if the university didn't know about it at the time. Well, I was thinking about depositions since it does seem unlikely to actually end up with a trial. Regardless, arguing the plaintiff is a horrible jerk who wouldn't have gotten in regardless of his race seems like one of many strategies to employ. I just thought that especially if the organization looking for plaintiffs is recruiting 18 year olds and telling them they won't have to testify, the defense would want to make that as un-true as possible. Maybe I'm just more of a jerk than the average litigator though.
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Apr 23, 2014 20:46
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Paul MaudDib posted:What is the difference? Let's say I rent my TiVo from my cable company (companies like DirecTV rent DVRs which can do "cloud streaming"). Then a third party owns the device which is streaming me media, therefore the third party is retransmitting? Never underestimate the ability of this court to completely ignore the consequences of its own reasoning when crafting a decision. It's entirely within Roberts' skillset to shut down Aereo with this reasoning and then say 'oh but this doesn't apply to cloud services because they aren't circumventing the law'. 5-4 with a concurrence by Thomas correctly pointing out the majority's reasoning should involve shutting down Dropbox that gets completely ignored boom, next up on the docket let's continue to repeal everything the Civil Rights Movement accomplished.
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Apr 23, 2014 20:53
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KernelSlanders posted:I just thought that especially if the organization looking for plaintiffs is recruiting 18 year olds and telling them they won't have to testify, the defense would want to make that as un-true as possible. Maybe I'm just more of a jerk than the average litigator though. I think you guys are just talking past each other a bit, and evilweasel read it as talking about testimony offered at trial. If I'm wrong, well maybe the answer is it's one of those odd defense deals where they get paid by the case rather than the hour 
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Apr 23, 2014 21:03
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UberJew posted:next up on the docket let's continue to repeal everything the Civil Rights Movement accomplished. John Roberts posted:Ah so you admit that the Civil Rights Movement accomplished its goal. Civil rights achieved, therefore Civil Rights Act no longer necessary QED.
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Apr 23, 2014 21:07
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Subjunctive posted: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!" What strikes me as absurd is that the only way Nielson knows viewers are tuned in is because certain people are actively participating in the ratings measurement program, whether by having a set-top box installed or by recording in a diary. How many people who choose to participate in Nielson ratings are going to be people who then turn around and just watch everything on the computer and not record what they're watching?
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Apr 23, 2014 21:51
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Paul MaudDib posted:What is the difference? Let's say I rent my TiVo from my cable company (companies like DirecTV rent DVRs which can do "cloud streaming"). Then a third party owns the device which is streaming me media, therefore the third party is retransmitting? Cable company has already paid the broadcaster a fee to retransmit their content. quote:Without a user connected to watch it, the box isn't going to retransmit a damned thing. Personal streaming is obviously a private performance. That's in contrast to a radio or TV rebroadcast, which happens whether someone's connected or not. And? The rebroadcaster doesn't rebroadcast when it's turned off either, but you aren't going to argue that doesn't make it a rebroadcaster, right? The problem is that when a user is connected it retransmits, and the law doesn't really care that when a user isn't connected it doesn't. Your other examples don't fall into retransmission for a variety of reasons. Also, personal streaming is not obviously a public performance under the law - see Columbia v Redd Horne, 749 F2d 154, in which private "streaming" of videocassette into private booths was a public performance. Still good law in the 3rd as far as I know! Also note that YouTube videos are public performances, despite being streamed to a single entity in any one location and likely a different ephemeral copy for each entity given the realities of caching and CDNs.
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Apr 23, 2014 23:15
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