Thursday, June 26, 2014

Cell Phones and Aereo: US Supreme Court

Now totally off topic today, but the US Supreme Court released two nerd related decisions yesterday that both seemed pretty sensible.  Modern Cell Phones are essentially computers now so cops need a warrant for searches of them outside extenuating circumstances like a kidnapping where someones life is currently endangered.  Now I do not personally have a smart phone so anyone searching my phone will find a couple of random bad pictures of my kids and the phone number of the local pizza place but it is still good to see some common sense applied here.  Even a 9-0 decision.  Whose says liberals and conservatives cannot get along.

The second case is more interesting involves a TV Recording and playing over the internet.  US noncommercial entities are legally allowed to record broadcasts they receive and watch them later or save them, but a company cannot record a TV show and then send out copies (physically or over the internet). One enterprising company decided that they would try to act as the middle ground and came up with a scheme involving tons of tiny antennas that users control to record shows off the air and then store in individual folders.  The users "rent" the set ups to record over the air broadcasts in various cities and stream them over the internet.  Now that setup seems pretty inefficient with tons of things doing exactly the same thing and lots of identical files being saved, but they structured it that way to essentially take the home user case law to the ridiculous extreme.

Such shenanigans worked well with the lower courts as they were bound by precedents, but the Supreme Court in a 6-3 decision was not buying it.  They used a if it walks like and talks like a duck argument to state that they believed that this activity is not essentially different from the activity that congress specifically regulated when it updated the copyright act in the 1970's to cover community antenna collecting over the air broadcasts and transmitting them by cable to peoples homes.  Having the user tune the antenna was seen as no different than having them turn the knob on the tv back in the 70s.  Now the 3 conservative justices who dissented did not imply that they thought the scheme was legal.  They just did not agree with the method of the decision specifically in that it found that the company was actually breaking copyright law directly as opposed to just knowingly, willfully, and enabling its customers to break copyright law themselves (ie napster).   They had a funny analogy about this being a copy shop that hands out local library cards but seems to me it is more like a copy shop that has a robot with a library card who checks it out, copies it, and then mails it to you.

Overall the decision is pretty reasonable, but the text does have some worrying parts involving what is a performance of a piece of copyrighted works that will probably get cloud based streaming sources sued in short order but those causes will not be clear cut as the justices tried to note that these ruling apply to collection of circumstances and not to all cloud based services in general.  The details of the case very closely match the formulation for the community antennas that congress crafted the section of the law to make its desires specific to the supreme court in the 70's.  The company could very easily sign agreements with the broadcasters to cover its service (their even might be statutory rates available so consent might not be required) but they did not want to pay.  There is a fine line between renting equipment and providing a service when the equipment in question never really leaves the possession and control of the owner.

Ofcourse no one reading this blog will probably be interested in this stuff,  I am not sure why I am giving I am not really a techie or a lawyer.

Update:  Fox has already added claims from the decision to an ongoing suit with Dish over its hopper streaming calling it a public performance to which Dish counters that the decision does not apply to them since they are a licensed retransmitter who pays fees to fox to provide the content to the customers unlike Aereo.


  1. I'm not a lawyer, nor do I play one on TV, but I enjoyed the read and it is more or less in line with what I thought. I kinda hopped Aereo would have pulled through but that was pure selfish, to hell with big companies, feeling based reasoning and I knew that it wouldn't fly legally.

    1. Thanks for taking the time. I also do not care for big companies and cable companies especially but this one seemed like common sense. If calling your product a service or a rental changes nothing about how it is actually done but a ton on how you claim it is regulated you are asking for trouble.

      Aereo probably made a mistake in not trying to be a CATV system as those are regulatory determined rates. Given this lose they are going to be bankrupt, it will be impossible to go back and start again that way but they wanted their cake and eat it too and went all in on their scheme. I do not think the broadcasters wanted them to be called a cable company as using the internet as the cable could open up tons of options and the fees are determined by congress.