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back to article US Supreme Court supremo rakes Aereo lawman in oral arguments

US Supreme Court Chief Justice John Roberts was less than subtle during oral arguments on Tuesday in the case of American Broadcasting Companies, Inc. v. Aereo, Inc., in which the broadcasting giant is seeking to shut down the spunky startup that charges its customers a monthly fee for internet access to streaming broadcast …

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WTF?

We shall soon see ...

If Money Talks and Bullshit Walks???

Won't we!

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Anonymous Coward

Who has the bigger pockets ?

What is the going rate for a US judge ?

Has there ever been a time when Roberts ruled against the richer company in a dispute ?

The Aereo model is just like having your own antenna in a position where it picks up a better signal.

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Re: Who has the bigger pockets ?

Anonymous Coward, Roberts was part of the majority who ruled for the person and against the company in Mutual Pharmaceutical Co. v. Bartlett.

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kb
Facepalm

Re: Who has the bigger pockets ?

What is funny is it really don't matter which way they rule, as broadcast TV is dying. I work with people in their 20s all the time as well as live near a college and their TVs? Are all being used for streaming, gaming, or as PC monitors. Kids today have grown up with the net and the idea of scheduled TV is as alien to them as 8-tracks.

So enjoy your greedy while you can broadcasters, because you will go the way of the LP. ironically if they would encourage bunches like this they might actually get kids watching again as they could just DVR everything and watch it on their timetable, but its not the first time we've seen companies burn long term survival for short term gains.

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Re: Who has the bigger pockets ?

quote: "The Aereo model is just like having your own antenna in a position where it picks up a better signal."

The Aereo model is just like a broadcast TV version of tax avoidance; completely legal by the letter of the law, and completely against the spirit of the law.

Aereo have a duty to their shareholders to minimise royalty payments made to provide their service in order to maximise shareholder value, and are doing so in a (currently) completely legal way. I understand why ABC has such an issue with it, much like the UK would love for Google, Starbucks and Amazon to pay up what they should owe in taxes for business conducted on UK soil.

I'm interested to see how this court rule on Aereo's deliberate avoidance of tax royalty payments using legal loopholes. Because it currently is a legal loophole, as far as I can tell.

To paraphrase something I've heard a few times in tax-avoidance related discussions; why should Aereo pay royalties that they don't have to?

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Coat

Re: Who has the bigger pockets ?

Hum, while I agree with you in general, your phrase of 'go the way of the LP' widely misses the mark you were going for. Not only is the LP not dead, it is prized these days, because digital kinda sucks. The phrase 'go the way of the CD' might be more apropos.

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We shall soon see....

If Money Talks and Bullshit Walks???

Won't we!

I suspect tht if the decision would go against the old broadcast media companies threatened with extinction dinosaurs, we will see legislation introduced by some Congressman media stooge to amend the copyright laws (like Sonny Bono did for Disney).

Hey El Reg, this edit timer thingy really sucks when you run out of time during an edit!!!!!!

How about fixing that dammed thing???

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Re: We shall soon see....

"Hey El Reg, this edit timer thingy really sucks when you run out of time during an edit!!!!!!"

withdraw ->start again if you can't cope with the 10 minute limit.

I think the 10 minute edit window is a good compromise between being able to fix you own posts and mitigating against trolls who might edit their posts after other have replied to the original.

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In Soviet America

The state rules you.

I don't get how he can be taken to court for not breaking the law and then have the judge there accuse him there of publically not breaking the law "on purpose".

About the egg timer the Reg uses:

Do you mean we can rewrite the post we spent how many minutes? 10 is it? rewriting, only to see it disappear into a vacuum before we get the chance to press control alt and save (which in case you hadn't thought about it (having considered the first part presumably????) requires more time, effort and concentration than clicking the submit button?)

Or do you mean that yes, in common with the most likely belief of most of us on here, it is a load of wank but that there has to be a reasonably good reason the wankers wank us?

Give us more time to hold a page open that has advertising on it perhaps?

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Re: In Soviet America

I don't get how he can be taken to court for not breaking the law

"He" (more accurately, Aereo) isn't being "taken to court for not breaking the law". The case against Aereo charges that they are violating the law as it should be interpreted. SCOTUS exists to determine the final interpretation of Federal law, and that's what they're being asked to do in this case.

and then have the judge there accuse him there of publically not breaking the law "on purpose".

Roberts went on to say that avoiding the law on a technicality was not in itself illegal, and to point out that lawyers do it all the time.

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woolyand wide ranging laws

Most law these days seem to be written either by people who don't understand the law or by people who understand it only too well. They seem to be written in such a way that it's hard to tell if there is a line, never mind where it is so as not to cross it.

Personally, I think it's caused by interested parties and their lobbyists so that they can stretch and bend the resultant legislation to suit themselves.

In this case, a "new upstart" is taking advantage of one of those same loopholes the "big boys" like to create and use and they don't like it being turned on them. No amount of shouting about the "spirit or intent" of the law is going to wash when the monied types are so used to paying their lawyers to define and redefine the words in the law so they can claim they followed the "letter" of the law.

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Re: woolyand wide ranging laws

Agreed.

I see the broadcasters points. The whole thing does stink of dodgy legal scam. But the key word there is "legal" at least from the view the courts ought to take. And given it is a law not an amendment to the constitution, the appropriate course of action is to update the law if you think it is a dodgy scam.

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Dear Broadcasters. Fek Off.

It's legal for me to have an antenna to pick up OTA content.

It's legal for me to hook up a recording device to said antenna, record the OTAC, and replay it at my leisure.

One antenna, one recording device, one customer, private performance, all legal.

All they're doing is moving the location of my antenna & recording device.

It doesn't matter if it's in my living room, bathroom, woodshed out back, outdoor privy at the end of the lot, in the trunk of my car, or on the bloody moon.

I paid for it, it's mine, and it's legal for me to do it, so what difference does it make if I decide to keep my one antenna & one recording device in my home or in their warehouse?

If it were an apartment flat & everyone had to put their antennas out in a specific spot in a communal yard (call it the "Antenna Garden"), then it's still a 1:1 relationship that's legal.

Or are you going to claim that, because it's an apartment & my roof is actually three stories above me, that I'm not allowed to deploy the antenna where it can actually receive the OTAC?

Because I've got news for you, and you're not going to like it.

It doesn't matter where on Earth I decide to situate that antenna, as long as I have permission from the property owner to do so, I can then feed that antenna's signal to my tv anywhere ELSE on Earth, and it qualifies as a 1:1 Private Performance.

It doesn't matter how I get that antenna's signal, as long as I'm the only one whom gets it.

It doesn't matter what gets done to the signal, E.G. recorded for later playback, as long as I'm the only one whom can access it as my legally authorized Private Performance.

So all that little company is doing is renting me an antenna & recording device.

It's a 1:1 antenna:recorder:person relationship, and the only difference is that the antenna isn't on my roof.

That's legal, and if it threatens your damned business model, you deserve to be put out of business.

Because if all you've got is the gimmick of trying to kill off your competition through bullshit lawsuits, I hope you die & I sure as hell won't shed a tear.

So Fek off.

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Re: Dear Broadcasters. Fek Off.

To play Devil's Advocate, your right to have an antenna and have a recording device accessible remotely doesn't necessarily extend to paying someone else for that service.

The same logic would have prostitution legal, since I have a right to have sex with any willing partner, but it is illegal to pay for it :)

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Re: Dear Broadcasters. Fek Off.

Prostitution is legal, in civilized jurisdictions where we recognize that the state has fuck all right to tell an individual of any gender what they may or may not do with their bodies. Legalizing prostitution allows the practice to "come in from the cold", where it can be regulated, accomplished in a secured environment and the overwhelming majority of negative consequences deal with in a sane and rational fashion.

If I have the right to do something then I have the right to pay someone to do it on my behalf. There is no moral or ethical rationale behind such an arbitrary restriction. Only greed and/or the desire to insert your personal control over the lives and doings of others (see: religion as the major culprit) can even begin to explain the asinine philosophies underpinning the concept that one could be allowed to do X but not pay someone to do it on their behalf.

Regardless of what X is.

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@DougS Re: Dear Broadcasters. Fek Off.

Your prostitution analogy is incorrect. The situation is more like a dating agency. You have a busy life and don't have time to receive broadcast signals at a convenient time. Somewhere out there is a signal that would be just right for you. Aereo can help you to get together, at a time that's convenient for you.

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Regardless of what X is.

Trevor, the legalization of prostitution is not universally acclaimed as a public good in those jurisdictions where it has been legalized, e.g. Germany. On the other hand, a different view from a prostitute in Amsterdam can be read here, where from her viewpoint, the biggest problems seem to come from the municipal government. (In the Dutch case, it was brothels and pimping which were legalized; prostitution hadn’t been illegal.)

Regarding X, would X include:

  • receiving a primary education?
  • voting in one’s country?
  • entering one’s country?

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@Irony Deficient

Picky any basic human right and you'll find people who are vehemently against it. A great example would be freedom of religion.

Is legalization of prostitution going to solve every single problem related to the profession? No. It still stakes actual enforcement of regulation. Hey, how's that financial industry working out, 100% problem free?

As for: "Regarding X, would X include: receiving a primary education?"

Sure, why not? I get the right to one education, courtesy of the taxpayer. What if I have enough money privately to get an education from an alternate facility or even from an alternate country? Why should I not be able to assign my "chit" to a fellow from (for example) Nigeria, whom I fly up in order to be educated at my country's public institutions using share of the social contract?

As for: "Regarding X, would X include: voting in one’s country?"

Absolutely, 100%. I trust my wife my my life, my sanity and access to every aspect of my finances. Why should I not be able to ask her to vote on my behalf? I also happen to trust a handful of individuals at the same level; why could I not ask the same of any of them? I can do so at a corporate level: my shares are represented at shareholder meetings by a trusted in proxy in all cases (I hate AGMs). Similarly, one of those aforementioned "trusted parties" in my life is the proxy for my vote regarding my condo board, and absolutely casts my vote as I would, even when we both vehemently disagree on the topic (and thus he's voting for and against his own position!)

I can think of ways you could abuse this ability - I.E. the local Mafia Don pressuring people - however, quite frankly, they could do that anyways. The methods would simply less direct and the fallout from the vote not going the Don's way more indiscriminate and messy.

As for: As for: "Regarding X, would X include: entering one’s country?"

Again, absolutely, why not? There are some tasks that simply need to be done country-side. Why can't I send a spouse or an aide to resolve the boring stuff? If some mindless bureaucrat needs to see me say "yes sir, very good sir, three bags full sir," can't they fire up Skype and stare at my jiggling jowels?

Obviously, when something is physically happening to the meatsack I occupy - I.E. the meatsack I occupy if physically moving across the border - then that is pretty hard to outsource, but with the sole exception of my not having solved the physics of paying someone else to do that, what's the issue? If I need to stay in the US for an extra month, but there is $red_tape to be dealt with, why cant' my wife fly home, grab a telepresence robot, head to the federal building and sign whatever bits of monotony need to be signed on my behalf? Why not a trusted personal assistant or aide?

Hell, here's a giggle: why, for any of the questions above, do I even need wetware at all? Why can't I just get a telepresence bot with a pair or arms and send that everywhere "I" am supposed to be? I can run a dozen of the things at a time and they could be semi-autonomous. They can do the boring things like "standing in line" and "fetching per-selected items", only alerting me when there's something I need to actually pay attention to, like signing a piece of paper or answering pesky questions for nosy wetware.

I fail to see a single legal thing in life where I shouldn't be able to pay someone else to do it on my behalf, if that's what I so desire. And frankly, most of what's illegal shouldn't be.

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Re: To play Devil's Advocate

No.

Where prostitution is illegal, the law clearly states so. There is no corresponding clear statement of law which applies to Aero, only the application of "intent" to fuzzy things up.

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Re: Regardless of what X is.

Trevor, the example X situations which I’d had in mind differed from yours. In the case of a primary education, I was thinking “what if a misogynist parent paid for someone else to receive a primary education in place of his daughter, so that his daughter would receive no primary education, to keep her illiterate and innumerate?” In the cases of voting and entering a country, I was thinking of the acceptability to the public and to the state respectively. Individuals could well trust e.g. a convicted perjuror enough to entrust their votes to him, but would it be generally accepted that a perjuror could act as a proxy for citizens in a secret ballot? (I disagree that citizenship and either shareholdership or membership in a homeowners’ association should be equated, since citizenship is most often inalienable, but the other -ships never are.) A person could implicitly trust someone to act on his behalf for in-country business, but what if that proxy is persona non grata to the current government? An overseas Briton’s right to, say, pay Julian Assange to sign a marriage register on that Briton’s behalf (so that the Briton, and not Assange, becomes married) in Islington will be vetoed with the police power, tout de suite.

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Re: Regardless of what X is.

“what if a misogynist parent paid for someone else to receive a primary education in place of his daughter, so that his daughter would receive no primary education, to keep her illiterate and innumerate?”

Then said parent would be violating the daughter's human rights and would - in any civilized country - be tried, sentenced and above all else had the privilege of raising a child revoked.

"Individuals could well trust e.g. a convicted perjuror enough to entrust their votes to him, but would it be generally accepted that a perjuror could act as a proxy for citizens in a secret ballot"

Other individuals and the state should have zero say on whom I choose to trust with my vote. It's my vote. By what right do they interfere?

"A person could implicitly trust someone to act on his behalf for in-country business, but what if that proxy is persona non grata to the current government?"

Then you're an idiot in choosing your in-country proxy? The person you choose to act on your behalf must be legally capable of doing so. We have a term in Canada that pretty much encompasses the concept, we call such individuals "bondable."

You're really - really - stretching for edge cases here when common sense will tell you that everything has boundary conditions. The existence of boundary conditions doesn't preclude the usefulness of the concept.

I should be able to select whomever I want to represent me. If the country in question refuses to deal with that person based on that individual's past behavior - as opposed to the concept that for some asinine reason I should not be allowed to operate by proxy - then I have chosen my representative poorly. That's pretty damned straightforward and I don't see how it invalidates anything I've said above.

Some people will attempt to commit crimes, even human rights violations against their own children. Again, I don't see how this invalidates the concept of a proxy rights.

Your arguments seem to be grounded largely in "what will other people think" of you choosing to do this?

I ask simply: why the fuck should I care what they think? My life absolutely should not be held hostage to the irrational moral whims of others. Unless what I am doing infringes upon their liberties, I should be free to do as I please. They should not have the "right" to impose arbitrary moral standards on me.

If I am doing something to harm them or common property that is owned by all citizens then by all means, restrain my liberty in order to curb my excesses. That is right, proper and just. Unless and until such an even occurs, however, get the hell off my lawn.

My choosing a representative to act on my behalf in any of the scenarios you outlined does not infringe upon the rights of others. If you can imagine a scenario in which my choosing a representative does in fringe upon the rights of others then that is situation in which a compromise needs to be discussed and likely legislated.

Telling me what I can and can't do because of arbitrary morality or religious belief is not a right I recognize, so I do not recognize the "right" of others to tell me that I can't choose a representative just because they don't happen to like the idea.

That we happen to live in countries where others do in fact succeed in restraining liberty where the exercise of htat liberty harms noone (say, sexual relations between consenting adults) is indicative only of the fact that they are willing and able to use force to make others comply.

Pointing a gun at my head and telling me that I am not allowed to engage in an activity is not remotely the same as there being an ethical or rational reason to prevent me from engaging in that activity.

Also: do remember that most of us did not choose our nationality. I swore no oath of allegiance to Canada, her laws, politicians, religious organizations or NIMBYs. I was born here, and if I don't obey the dictates and whims of those who wish to impose their irrational desires upon me then I will either be killed or forcibly confined.

That is not the same as laws crafted ethically and rationally wherein I am given the choice to agree to abide them and do so because I believe that on the whole they are just.

So I return to my original thought: I see no reason I shouldn't be allowed to chose a trusted proxy for everything, so long as what I am doing is legal. In addition, most of what's currently illegal probably shouldn't be. They are two separate issues, and certainly there will always be bad people trying to beat the system, but I believe both statements are valid.

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Dear prostitutes

Someone on here thinks prostitution is illegal:

"The same logic would have prostitution legal, since I have a right to have sex with any willing partner, but it is illegal to pay for it."

Can you please tell me if he is right?

I always thought people can have sex for pleasure or for money whichever they prefer. Or are we in the USA already?

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Pint

long view...

I kind of buy the argument of Aereo, because I live only 1 mile from the transmitter and I cannot see half of the channels due to the local buildings. What I do get mythtv cuts the adverts out. How can the network company possible lose for my getting a better signal?

It is almost as if they WANT you to buy cable....oops!

However, many of the networks now put their programs online anyway, and since I have linux I don't have to endure too much of the adverts - not automated yet, but I am working on a little perl script that will look for the "advert signal" and the user can specify the state change material (currently internet radio, for example).

P.

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Re: long view...

But if enough people follow you away from cable/satellite TV, the networks will find a way to get their money. That is, they'll start charging for the programming that's now free on their sites, and/or require an app to watch the programming to insure there's no way to capture the stream or skip the ads.

Two networks said they'd pull all their valuable content (i.e. sports plus any high-rated prime time programs) off their affiliates and distribute it in other ways if Aereo wins. That may be an empty threat, but if they figure they can make more money by becoming "CBS Network" available on cable and satellite they will.

There is not much reason to keep broadcast TV around anymore if you think about it, there are better ways to distribute the same content. If they don't make enough money from it (required to pay for the high cost of sports rights deals they've made) the whole network/affiliate broadcast TV model may collapse.

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Facepalm

TL;DR version

"Your technological model is based solely on circumventing legal prohibitions that you don't want to comply with. There's no reason for you to have 10,000 dime-sized antennas except to get around the Copyright Act."

"Well, yes... did we?"

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Coat

"Ruling against us could dissipate the cloud"

So at least there's a silver lining then... err...

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Headmaster

Well guess what 'your honour'...

...claiming that 'Aereo's retransmission of broadcasters' content is a "public performance"' is equally meant solely to shoehorn and twist their activity into something that is forbidden by law. There's no reason for the broadcasters to claim it except to acquire unwarranted protection under the Copyright Act.

So what now, oh Wise One...?

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I hope Aereo wins ...

... because I love to see someone look at the law and come up with a clever way to circumvent it (even if I don't think this *is* a circumvention of the law - as others have said, it is simply a way of renting an antenna in a convenient location and accessing it remotely, and therefore the same as putting a physical antenna on a hill on your neighbour's land for a ground-rent). However, with Supreme Court Judges like Roberts and Bader-Ginsburg - who, if not *actually* corrupt and in the pockets of big business and the Republican Party, give every appearance of so being - then I'm not holding out much hope.

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Anonymous Coward

The larger picture...

Technology has now reached the point where it can be inserted into any infinitesimal gap in the law.

This quasi-legal approach to technology is going to become relentless, and the SCOTUS is going to be very busy over the next few decades drawing ever finer lines.

That's the larger picture.

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"Your technological model is based solely on circumventing legal prohibitions that you don't want to comply with," Roberts told Aereo attorney David Frederick, reports Deadline Hollywood. "There's no reason for you to have 10,000 dime-sized antennas except to get around the Copyright Act."

Balderdash. Technologically it's nonsense, but the entire nonsensical effort was made solely to try to fit into existing laws. If making an effort to stay within the limits of the law is obviously an attempt to circumvent the law, then our entire legal system is a sick, sadistic joke. Either it's legal or it isn't, and there's no excuse for trying to argue that it's illegal because it's legal.

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Unhappy

Help me Obi Wan

Help me understand why the supremes have gone over to the dark side....

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@earl grey -- Re: Help me Obi Wan

$$

Next question?

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WTF?

Of **course** Roberts would say that...

"Your technological model is based solely on circumventing legal prohibitions that you don't want to comply with," [SCOTUS Chief Justice John "I-never-met-a big-business-I_didn't-like"] Roberts told Aereo attorney David Frederick, reports Deadline Hollywood. "There's no reason for you to have 10,000 dime-sized antennas except to get around the Copyright Act."

Dear John, such is the motivation for many, many new and different things to legally get around braindead legislation by using it against itself. It's called Innovation. Course, you wouldn't know anything about that, now would you, fuckwit?

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