Broadcasters have an alternative to converting over-the-air networks to cable channels to thwart Barry Diller's Aereo and Charlie Ergen's AutoHop Dish DVR: the "Dual Stream Strategy." Each TV station would feed a new, modified visual format of programming to their transmitters for OTA reception. This would consist of a station’s programming lineup in a reduced-size video window, surrounded by continuous weather, news and community information graphics and visual ads. The second stream would consist of the core programming full-screen, just as it is now, for MVPDs with retrans deals.
OPEN MIKE BY LEE SPIECKERMAN
How Stations Can Kill Aereo And AutoHop
TV stations and networks, already under siege from a plethora of online video offerings and new competitors like Netflix, are now facing a fusillade from Barry Diller and Charlie Ergen.
Diller-backed Aereo picks up TV station signals off-air and streams them to subscribers via the Web, without stations’ permission. Multichannel video programming distributors (MVPDs) like Comcast, Time Warner, DirecTV, Dish, Verizon FiOS and AT&T U-Verse have retransmission agreements with TV stations that usually involve paying the stations to carry their signals. That retrans revenue stream has become a crucial supplement to advertising revenue.
Meanwhile, Ergen-controlled Dish has started offering a feature called AutoHop that automatically strips all TV ads from programs recorded on Dish DVRs.
So far, the courts are doing nothing to stop Diller’s and Ergen’s attacks on the television industry and there are indications that the two pirates are in cahoots.
Dish just announced that it’s raising $2.3 billion to buy wireless spectrum. If Aereo isn’t stopped by the courts, Dish could harness that spectrum to send streams of local TV stations picked up by Aereo to Dish subscribers, enabling Dish to avoid having to make retransmission deals with broadcasters. That would save Dish — and cost the TV industry — billions.
Dish is already being sued by the networks to stop AutoHop. The networks claim that Dish doesn’t have the authority to tamper with ads from DVR replays of broadcasts.
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CBS is seeking to have its retransmission agreement with Dish vitiated, on the grounds that Dish deliberately concealed its plans to launch AutoHop during their retrans negotiations. Fox, having been denied a preliminary injunction against AutoHop, has appealed to the Ninth Circuit.
Given the inherent vicissitudes of the legal system — a risk compounded by the incompetent jurisprudence on Aereo and AutoHop to date — and Charlie Ergen’s history of scorched-earth, ego-driven litigation, it would be foolish for broadcasters to leave their destiny in the hands of the courts.
So it’s not surprising that both News Corp. COO Chase Carey and Univision Chairman Haim Saban announced this week that their broadcast networks are prepared to take their signals off-air and convert their networks into pay channels, available only through MVPDs.
As MVPD-only services, television stations would be able to protect their intellectual property from Aereo’s off-air pilferage and, perhaps, more easily restrict Dish’s ability to excise their advertising. And TV stations might garner more in license fees from MVPDs than they currently receive from them in retransmission fees.
But ending over-the-air (OTA) service would be the nuclear option for TV broadcasters.
It would cut off service to viewers who can’t afford MVPD subscriptions — reducing ratings and creating a PR nightmare; end the cost-saving compulsory license for programming, which only applies to OTA broadcasts; diminish broadcasters’ leverage in carriage negotiations with MVPDs; and likely result in government confiscation of most or all of TV stations’ valuable OTA spectrum.
There is an alternative strategy broadcasters can execute much more quickly and easily with dramatically less downside risk: the “Dual Stream Strategy.”
Most TV stations already have the ability to send one programming stream to their transmitter for OTA reception and a totally separate programming stream, via fiber, to MVPDs.
Under the Dual Stream Strategy, stations would fully exploit the power of this capability.
Each TV station would feed a new, modified visual format of programming to their transmitters for OTA reception. This OTA Feed (OTAF), would consist of a station’s programming lineup in a reduced-size video window, surrounded by continuous weather, news and community information graphics and visual ads. Also included would be a graphic informing viewers that they can get the station’s programming, without the added visual elements, from their cable and satellite provider and the station’s mobile service.
Here is what the OTA feed might look like:
The second stream would consist of the core programming full-screen, just as it is now. This Exclusive Clean Feed (ECF) would be provided only to MVPDs that have retransmission agreements with the stations in good standing (in other words, not including Dish with AutoHop). As noted above, the ECF would also be available through stations’ mobile phone/tablet services such as Dyle and Mobile500 Alliance.
Adding the layers of important, local, free visual content to OTA broadcasts of regular programming would in no way debase a TV station’s service to its community. To the contrary, it would be a significant enhancement to many OTA viewers who can’t afford cable or satellite (and in some cases, Web access) and are thus deprived of 24-hour news and weather channels.
This Dual Stream Strategy would annihilate Aereo and decimate Dish AutoHop by relegating their subscribers to a screen crowded with unwanted visual content and a shrunken programming window.
And, of course, the continuous on-screen ads in the OTAF would be AutoHop-proof.
In addition to fortifying broadcasters’ franchises, the ECF would raise the value of station content to MVPDs by driving new subscriptions from viewers who now get all their TV OTA. It would insulate the MVPDs from Aereo and emerging Web-based and Over-the-top video services while accelerating uptake of TV stations’ mobile video services.
Comcast would seem particularly well positioned to execute the Dual Stream Strategy, as it has NBC network owned-and-operated stations in five major markets where its cable MSO is the primary MVPD: Chicago, Philadelphia, San Francisco, Washington and Miami. Most have a very low percentage of OTA-only households.
The Dual Stream Strategy might require stations to modify some network, syndication, sports rights and advertiser contracts — but far less than would becoming an MVPD-only service, which would eliminate the stations’ compulsory license. Because the core programming content of both streams fed by TV stations would be identical, that compulsory license and the MVPD broadcast retransmission rubric would remain intact.
And every participant in the video value chain — whether an MVPD, a studio, a sports league or an advertiser — has a huge incentive to cooperate with broadcasters. All have a common interest in shooting down Aereo before it gains more altitude and in eviscerating Ergen’s AutoHop
Dish would undoubtedly claim that by forcing Dish viewers to settle for the OTAF, TV stations would be violating their Dish retransmission agreements. But, of course, broadcasters are already claiming that Dish’s AutoHop violates those deals.
So, broadcasters can throw Charlie Ergen’s four favorite words right back at him: “See you in court.”
After several brutal years, local television is finally recovering. Local TV journalism, boosted mightily by MVPD retrans revenue, is experiencing a renaissance. Broadcast television undergirds the U.S. pay television and content creation industries, as well as professional and college sports.
Aereo and Dish apparently have no compunction about collapsing that exquisite, uniquely American media ecosystem — one that has brought our citizens the most localized television service, and the widest choice of affordable video content, on the planet.
By implementing the Dual Stream Strategy, broadcasters can vanquish Ergen, Diller and fellow intellectual property plunderers without ceding any of their audience, revenue or spectrum.
Lee Spieckerman is CEO of SpieckermanMedia LLC, a Dallas-based strategic communications consultancy and cable television network company. You can contact him at l[email protected].
Comments (31)
Matthew Castonguay says:
April 12, 2013 at 9:11 am
Interesting idea…have to think through what it would mean though to degrade the experience for OTA viewers in this way (because that is the way most of them would perceive this). Another way this could be done…perhaps…would be to go standard def for OTA/high-def for the cable feed, thus creating a “premium” value for the MVPD stream. At the same time, you’d free up a lot of spectrum for mobile DTV, multicasting, etc. I wonder also if there aren’t any technical tricks engineers could cook up that would leave the standard def OTA stream still looking pretty good over broadcast, but signficantly degraded whenever someone tried to record and stream?
Christina Perez says:
April 12, 2013 at 12:00 pm
Interesting? This is the most anti-consumer, uber-greedster proposal I’ve seen recently. “Want to receive just the program that you traditionally have gotten in full high-def for free? Pay up or shut up!” Talk about throwing the baby out with the bathwater. There’s a reason broadcast TV is the most efficient ad medium on the planet, and that’s because it’s always been universally available, free and over the air — the way that consumer WANT to receive network TV. The airwaves still belong to the PUBLIC, Rick, much to the chagrin of the “turn OTA TV into pay TV” lobby.
Gregg Palermo says:
April 12, 2013 at 10:32 am
I wonder how long it would take enterprising TV set manufacturers (or third-party add-on device makers) to concoct a video zoom option that would permit the user to simply reduce the frame of any given channel to the desired screen portion? Digital signals are readily manipulated in a post-analog world.
Marilynn Garbarino says:
April 12, 2013 at 12:07 pm
there already is a zoom feature on TVs
Audie Morrow II says:
April 12, 2013 at 10:57 am
RustbeltAlumnus2, Thanks for your comment and I anticipated that possibility. DISH subscribers certainly would not settle for a pixelated, zoomed-in picture on their expensive HD television sets and the computer/laptop video quality of a zoomed-in OTAF video frame would look even more ragged on Aereo. Keep in mind, subscribers are PAYING for both services.
Albert Pica says:
April 12, 2013 at 11:37 am
Exactly.
Marilynn Garbarino says:
April 12, 2013 at 12:09 pm
most people don’t even know if/when they watch television in HD so I don’t think the picture quality would be that much of a factor
Ellen Samrock says:
April 12, 2013 at 11:17 am
I’m assuming this is a temporary solution. I can’t think of a more effective way for getting OTA viewers to subscribe to other services then by forcing them to watch a screen cluttered with a bunch of crap. And let’s not kid ourselves, they would just as likely subscribe to Netflix Instant or Hulu Plus for network shows as they would cable or satellite, in which case local broadcasters would receive no retrans fees and no ratings. Despite the rulings of a couple of nitwit low level judges, the networks have a strong case against Aereo, which is nothing more than cable by another name. And Dish may very well be guilty of breach of contract with The Hopper. The nets need to continue their fight in the courts or, if absolutely necessary, take it to the FCC. They have a case. But don’t take this fight out on loyal OTA viewers. It isn’t fair to them.
John Stelzer says:
April 12, 2013 at 11:27 am
An interesting concept. But remember one of the original ideas of the folks behind the FCC’s National Broadband Plan – OTA television would become a standard-definition “lifeline” service on VHF channels only, with today’s broadcasters doubled and tripled up in each channel. The limited service described here fits nicely into that diminished niche. Multicast and mobile would require more spectrum and UHF, but multicast would have the same vulnerability to Aereo and Auto-Hop, unless each multicast virtual channel is cluttered like the main channel. With the pressures from the subscription-broadband providers, economic theorists, and a Congress in search of revenue on the FCC, would this strategy ultimately contribute to further loss of spectrum?
Audie Morrow II says:
April 12, 2013 at 11:39 am
D BP Thank you. If you’ll Google me, you’ll see that in my previous TVN piece on Aereo last summer, I posited that the networks have a formidable case against Aereo – but, as outlined in this piece, so far, the judges just don’t get it (with the exception of 2nd Circuit Judge Chin – who also has unmatched high-level copyright case experience). To a viewer who can’t afford cable or satellite, having free continuous weather and news info could well more than offset the negative of a smaller program picture. It’s certainly unlikely to make any viewer who wants to watch programming on broadcast TV stop doing so – they will either start subscribing to an MVPD or settle for the free signal with the enhanced local visual content. Yes, one advantage to the Dual Stream Strategy is that it might prod Congress to clarify copyright laws to leave no room for misinterpretation that ANY company re-selling a TV broadcast signal is automatically classified as an MVPD and required to adhere to the retransmission consent regime. And that any MVPD that automatically strips content from a DVR-recording of a broadcast or cable TV program is infringing on the programmer’s copyright..
Ellen Samrock says:
April 12, 2013 at 12:24 pm
I actually remember that piece, Lee. And I recall you took a lot of pot shots from Aereo boosters because of it. But here’s the indisputable logic: take a signal off the air and resell it to a subscriber, that’s cable. Take a signal off the air and resell it to a subscriber while not paying the content owner, that’s piracy. And it doesn’t matter whether it’s one giant antenna or a billion tiny antennas, the basic concept is the same. End of discussion as far as I’m concerned. Now as an LPTV station owner, I have no problem letting Aereo redistribute my signal–and I won’t charge them a penny to do it (and I know other LPTV station owners feel similarly). But unless Aereo wants to spend themselves into an early bankruptcy due to litigation costs, they would do well to engage in some good faith negotiations with the networks. In the end we will all benefit….including Aereo.
Kristine Lindsey says:
April 12, 2013 at 3:11 pm
Actually Lee, and D BP, little of what was written in that earlier article made any sense. Bob Zeryunkel very clearly demolished your argument; from what I’ve read it is really you who just doesn’t get it. You stated, “The only material distinction between Aereo and the cable and DBS companies is that Aereo’s service doesn’t also include cable networks like ESPN, Fox News and AMC.” which is factually incorrect. The architecture is clearly different and that makes all the difference in this case. Aereo is doing nothing more than providing an antenna on a really long cable to each user. If the networks were thinking clearly about moving into the future they could easily shutdown Aereo by banding together and providing the same service Aereo is providing, they might even be able to squeeze a little subscription money out of the users for the trouble. However seeing how incumbant industries deal with new technologies, like Betamax and digital music, I am not holding my breath.
Audie Morrow II says:
April 12, 2013 at 11:44 am
TVRFPE, the Dual Stream Strategy requires no more OTA spectrum than do current TV broadcasts.
Marilynn Garbarino says:
April 12, 2013 at 12:14 pm
Annoy in order to get people to pay. This works for some. Regardless, us younger people around 30 are increasingly ambivalent to broadcast TV and any TV for that matter. I haven’t watched but 3-4 hours in total of local broadcast since 2009 and I don’t miss it. Between my Netflix queue and podcasts I have no time or desire to watch OTA and were it not for my partner’s addiction to the NBA we wont even have pay TV. I’d happily join the cord cutting crowd
Audie Morrow II says:
April 12, 2013 at 12:32 pm
JD, really sorry to hear that you’re missing out on all the awesome content broadcast TV has to offer
Julie Caracciola says:
April 12, 2013 at 3:04 pm
Keep in mind that if TV stations opt to provide a “Pay-TV” service via their OTA channel which is not available to the public for free, then they are required to pay over a significant percentage of their gross income from their pay channel to the national treasury. This is black-letter law. So there goes the financial advantage out the window. Nice try, but no cigar.
Audie Morrow II says:
April 12, 2013 at 5:29 pm
Günter Marksteiner, nothing I’ve proposed involves Pay TV over-the-air.
Audie Morrow II says:
April 12, 2013 at 5:32 pm
Joe P., please cut and pasted the language from the ’76 or ’94 changes to the Copyright Law regarding retransmission of broadcast signals that in any way references how cable companies/MVPD’s obtain the signal from the broadcaster. The operative dimension of the copyright laws and retransmission regime is conveying broadcasters to paying subscribers, irrespective of how those signals are obtained from TV stations.
Kristine Lindsey says:
April 13, 2013 at 11:02 pm
Lee, It is the interpretation of the Transmit clause of 17 U.S.C. § 101 and what is defined as a public vs. private performance. The majority in this appeal correctly argued that the organization. The stream received by the user from Aereo is distinctly received, distinctly tuned, distinctly recorded, and distinctly transmitted in such a way as that it is not available to the public. It is not materially different than the antenna I have on my roof which distinctly receives, distinctly transmits, to be distinctly tuned to any room in my house. In the same way that the public can’t access the signal I’ve received from my roof top antenna, the public can’t receive the signal from the antenna one might have rent from Aereo. Both signals are private end to end and there for neither run afoul of 17 U.S.C. § 101. As I mentioned earlier, one might expect that the industry would take note of this development, history, and realize the potential. But, as usual, instead of getting ahead of the game and developing their own offering and embracing new and improving technologies, they’re choosing to waste millions on litigation to stop, hobble, and stifle what will inevitably be. Not much different from the cable TV fights, the VCR fights, the time and place shifting fights, the digital music fights. It always surprises me that incumbent industries always take the hard road and do things the hard way. http://tinyurl.com/c9btfr8
robert russo says:
April 13, 2013 at 11:51 pm
Yeah. If I’m Aereo or Dish, I just programmatically zoom out the clutter. And let stations sue me. This is a cool idea but has holes so big you can drive a truck through them.
Ron Molnar says:
April 14, 2013 at 9:42 am
What about consumers like me? I do not have access to cable because I live in a “rural” area. We have Dish as an option, but they only offer our local channels in SD. Directv, my service provider, does not offer local channels for the Bowling Green KY DMA. Our only option for local channels in HD is OTA. In this scenario, consumers like me would be doomed to a cluttered screen and we would likely tune-out local channels. Once we are gone, I don’t see us coming back.
Audie Morrow II says:
April 14, 2013 at 12:10 pm
boismedia, if you’re willing to pay DISH to view zoomed-in, pixelated pictures of the major broadcast channels.
Joe P., unfortunate that you’re falling for Aereo’s claim that because it assigns a unique, tiny antenna to each of its subscribers for over-the-air TV reception, the company is in the business of “renting antennas,” not broadcast retransmission like the MPVDs. In the piece I penned here in TV Newscheck following Judge Nathan’s opinion last summer refusing to issue an injunction against Aereo, I explained why this was not only patently ludicrous, but laughable:
“What Nathan blithely ignored is that the copyright rubric governing retransmission of television stations has never been in any way predicated on the method used to capture the stations’ signals. Whether those broadcasts are received via one master antenna, multiple antennas or, as is increasingly common with cable and DBS providers, through fiber optic connection to the local TV stations, is irrelevant. The video service provider is an intermediary that must forge a contract with a TV station in order to deliver the station’s content to subscribers.
“So Aereo is no different from every other MPVD: it charges subscribers a monthly fee to receive local TV stations for live viewing or personal recording.”
The dissenting 2nd Circuit Court of Appeals judge, Denny Chin, agrees. He called Aereo’s antenna system “a Rube Goldberg-like contrivance, overengineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.” Chin determined that Aereo’s streams of TV station signals are “public performances” that violate copyrights.
Incredibly, in supporting Nathan’s flawed decision, the 2nd Circuit specifically highlighted its agreement with her citation of court decisions allowing Cablevision’s “Network DVR” feature — which enables subscribers to record TV shows using remote Cablevision servers, not just in-home DVRs. My TV Newscheck piece addressed that travesty, as well:
“Nathan speciously cited the precedent of a 2008 case involving Cablevision Systems Corp. regarding its ‘Network DVR’…Nathan wrote: ‘The overall factual similarity of Aereo’s service to Cablevision suggests that Aereo’s service falls within the core of what [the] Cablevision [precedent] held lawful.’
“Unbelievably, the obvious difference between Cablevision and Aereo escaped Judge Nathan: Cablevision has retransmission licensing agreements with every TV station on its system. So Cablevision subscribers can only use the ‘network DVR’ to record and play back content from TV stations with which Cablevision has a contract.”
I concluded my TVN piece by pointing out the pernicious precedent allowing Aereo to continue would create — which would inevitably extend across the entire MPVD industry:
“This court decision invites – indeed impels – cable systems and DBS providers to circumvent broadcast retransmission agreements with Aereo-like schemes.”
Again, Judge Chin and I are on the same page. In his dissenting opinion he wrote, “Today’s decision does not merely deny the broadcasters a licensing fee for Aereo’s activity; it provides a blueprint for others to avoid the Copyright Act’s licensing regime altogether.”
And, sure enough, days after the 2nd Circuit Court’s Aereo ruling, The Wall Street Journal reported that Aereo and DISH are holding secret discussions.
It should be noted that dissenting Judge Chin has far more experience handling complex, far-reaching copyright cases than most judges. As a New York federal district court judge in 2011, he rejected a sweeping $125 million legal settlement Google had reached with authors and publishers pursuant to the Google Library Project — its plan to create the world’s largest digital book library. This forced Google to forge a more advantageous revenue sharing agreement with publishers in exchange for their dropping out of the suit.
Judge Chin is even better known for presiding over the high-profile Bernie Madoff case. Chin sentenced Madoff to 150 years in prison for perpetrating his massive investor Ponzi scheme.
The months Judge Chin spent wallowing in the Madoff cesspool was perfect preparation for the Aereo case — a parade of disingenuous arguments obfuscating theft on a grand scale.
Joe P., by your specious logic, a music pirater could install shotgun microphones near an open-air concert venue, record the bands’ songs and re-sell them without compensating the artists.
Marilynn Garbarino says:
April 15, 2013 at 8:50 am
See that is the problem. Old media fighting new technology because it changes things from how they used to be. And in the process becoming irrelevant. As evidenced by the viewing habits of the younger generation, not to mention TV ratings the last few months.
The nets fought tooth and nail the VHS and lost. Fought against the DVR and lost. Fought the Slingbox and lost. Online streaming, and lost. Again. They’ll lose, again. It’s only a matter of time.
I personally see no difference between my awful Comcast DVR sitting in my house or a networked DVR. Well, actually not crashing and freezing would be the difference. But what difference does it make if, when I press or schedule record, the hard drive is in my house or if the hard drive is in Comcast/Cablevision/Whoever’s data center?! It’s the same thing done in a different way.
All Aereo does is allow me not to have an antenna at home, by essentially renting me one for a monthly fee with cloud storage for DVR and the ability to access it anywhere on any device.
I actually can replicate what Aereo does with some hardware and my internet connection but not as elegantly. Yet. Some new apps are coming out later this year.
But the broadcasters are greedy. Excluding content sales, broadcasters currently get paid via ads, retrans fees, and TV anywhere rights so us viewers stream the same signal over the internet. So they are getting paid 3 times for the same thing. That is to say, I the consumer, is paying 3 times to watch that one station eyes up at the TV or down at my mobile device. I wouldn’t be surprised if there was a DVR retransmission right also. The nets think they’re so indispensable that they’re entitled to charge 3 times for the same thing.
By the same token, should an antenna maker/seller share the profit with broadcasters for selling me an antenna? Should someone like SiliconDust pay the nets a fee because HDHomeRun allows us consumers the ability to sling the singnal all over the house, on any device. Even while mobile outside the house? Should Microsoft pay the nets because Windows Media Center allows me to share TV tuners in my network?
Look at the comments young people are leaving on the tech blogs in response to FOX threatening to take the network to cable. They’re all for it so the broadcast signals can be used for broadband! They don’t care about the network, where it’s moved or what happens to it.
According to Nielsen, with 974,000 new households in 2012 there were just 47,000 new customers for pay TV in the same year. That speaks volumes as to where things are headed. Television is now the newspapers. My local newspaper is giving me a subscription for the Wed-Sun paper from March until July for $20, out of which $15 is for delivery. That’s TV in a few years.
Kristine Lindsey says:
April 15, 2013 at 8:17 pm
“…but laughable: “What Nathan blithely ignored is that the copyright rubric governing retransmission of television stations has never been in any way predicated on the method used to capture the stations’ signals.”…” To a point you’re correct Lee, the problem is that the transmittal clause of the law to which you are referring applies specifically to public, not private, transmission as opposed to mechanism. It is the question of whether Aereo is providing a public performance or not on which this case will probably be determined. That it is a public transmission is the claim that the plaintiffs assert and it doesn’t appear that anyone, except perhaps Chin, is questioning the mechanism. As noted in the majority’s decision, (see Section IV) a copy right claim in this context is only actionable if the performance is a determined to be a public performance, “But because Congress did not wish to require everyone to obtain a license from copyright holders before they could “perform” the copyrighted works played by their television, Congress was careful to note that a performance “would not be actionable as an infringement unless it were done ‘publicly,’ as defined in section 101.” id. “Private” performances are exempted from copyright liability. Id. This limitation also applies to performances created by a “transmission,” since, as the Cablevision court noted, if Congress intended all transmissions to be public performances, the Transmit Clause would not have contained the phrase “to the public.”” The only question that matters is whether Aereo’s actions constitute a public performance, and yes details matter. Moving on to scenarios. I don’t see how the concert scenario you provided is analogous. The reason being is that, to the best of my knowledge, the actions you describe would not be considered fair use even if done by just some member of the public, let alone a professional boot-legger. That is to say that it’s unlikely that someone outside said venue could record the concert, even for their own private use, legally. Somehow I doubt anyone would do anything about it if the individual did try this, and didn’t try and resell it, but as a technical matter that action is covered by copyright. The act of receiving OTA broadcasts by a member of the public is covered under fair use. So on that point alone I don’t really follow your analogy. Now I’d be interested to see some thoughts on a scenario of my own. I think a similar situation might have been presented in the earlier article but I don’t think it was answered. Consider an apartment building with say 100 units. Each apartment is pre-wired with typical coax with terminals on the roof numbered 1 – 100. We know that each wire services only a single apartment. If the apartment owner permits residents to affix an antenna on the roof and connect it to their designated terminal, that isn’t infringement. I suspect we can agree on that. If the owner required you to pay an extra fee to put your antenna on the roof, in the same way you might have payed extra for a parking space, would that be infringement? Now what if the apartment owner said, “You don’t need to buy the antenna, I’ll rent one to you, hook it up, and maintain it.”. Is that infringement? I would assert that none of these situations is infringement. Because I don’t see how they are materially different with respect to the transmission clause. As an aside it move like this: http://tinyurl.com/cg6xyeu which cause fuel things like Aereos. If providers would just pay attention to what the public is looking for, there would be less interest in developing these ideas and those services would have much more difficulty getting off the ground.
Trudy Rubin says:
April 15, 2013 at 8:59 am
I am nothing more then a consumer of OTA and I appreciate broadcasters need to make money and the need to protect copyright. At the moment broadcasters have some public support in their battle to protect their spectrum, however that support will evaporate if broadcasters degrade their OTA service to protect revenue. A cluttered screen to protect subscription revenue, makes broadcasters nothing more than another cable channel.
Audie Morrow II says:
April 15, 2013 at 11:49 am
Adding content to OTA broadcast signals that benefits viewers without the means to afford cable/satellite enhances service for those who have no option but OTA TV. Those that have the means to subscribe to a MVPD (which also means they’ll have other TV options for continuous news, weather, community info) will get the clean feed.
JD: As long as intermediaries aren’t re-selling broadcast signals they illegally obtain for free, there is no problem. This concept is no more “anti-new technology” than a store protecting its merchandise from shoplifters with electronic tags. Antenna makers sell a freestanding piece of hardware to customers – they do not obtain the broadcast signal at a remote locaiton and convey it via Web to paying subscribers. The cost of one year of Aereo would buy a very nice TV antenna and there would be no need for future outlays to the purveyor.
Trudy Rubin says:
April 15, 2013 at 4:04 pm
Lee your assuming viewers and supporters of OTA, are doing so because they can’t afford to pay for a subscription service. Many OTA viewers have Netflix, or Hulu and watch OTA. Many of the people who can’t afford cable no longer watch TV, they were already disenfranchised during the DTV transition. Many of under 30 year crowd are perfect candidates for OTA, since they don’t like to pay for content. If broadcaster’s throw their OTA viewers under the bus, by degrading their service, they lose support from those viewers. The question is who are OTA viewers, the poor, who have no choice (and most of them no longer watching TV). Or Internet users, who are out to save money and who find other ways to watch contend. As for FOX pulling it’s over air content, let it. They’re are many companies that have went out of business, because the CEO thought their company was more important, then it really was and that the consumer was there to serve their company, instead of the company being in business to serve the consumer. FOX appears to need to learn that lesson.
Kristine Lindsey says:
April 15, 2013 at 8:16 pm
“…but laughable: “What Nathan blithely ignored is that the copyright rubric governing retransmission of television stations has never been in any way predicated on the method used to capture the stations’ signals.”…”
To a point you’re correct Lee, the problem is that the transmittal clause of the law to which you are referring applies specifically to public, not private, transmission as opposed to mechanism. It is the question of whether Aereo is providing a public performance or not on which this case will probably be determined. That it is a public transmission is the claim that the plaintiffs assert and it doesn’t appear that anyone, except perhaps Chin, is questioning the mechanism. As noted in the majority’s decision, (see Section IV) a copy right claim in this context is only actionable if the performance is a determined to be a public performance, “But because Congress did not wish to require everyone to obtain a license from copyright holders before they could “perform” the copyrighted works played by their television, Congress was careful to note that a performance “would not be actionable as an infringement unless it were done ‘publicly,’ as defined in section 101.” id. “Private” performances are exempted from copyright liability. Id. This limitation also applies to performances created by a “transmission,” since, as the Cablevision court noted, if Congress intended all transmissions to be public performances, the Transmit Clause would not have contained the phrase “to the public.”” The only question that matters is whether Aereo’s actions constitute a public performance, and yes details matter.
Moving on to scenarios. I don’t see how the concert scenario you provided is analogous. The reason being is that, to the best of my knowledge, the actions you describe would not be considered fair use even if done by just some member of the public, let alone a professional boot-legger. That is to say that it’s unlikely that someone outside said venue could record the concert, even for their own private use, legally. Somehow I doubt anyone would do anything about it if the individual did try this, and didn’t try and resell it, but as a technical matter that action is covered by copyright. The act of receiving OTA broadcasts by a member of the public is covered under fair use. So on that point alone I don’t really follow your analogy. Now I’d be interested to see some thoughts on a scenario of my own. I think a similar situation might have been presented in the earlier article but I don’t think it was answered.
Consider an apartment building with say 100 units. Each apartment is pre-wired with typical coax with terminals on the roof numbered 1 – 100. We know that each wire services only a single apartment. If the apartment owner permits residents to affix an antenna on the roof and connect it to their designated terminal, that isn’t infringement. I suspect we can agree on that. If the owner required you to pay an extra fee to put your antenna on the roof, in the same way you might have payed extra for a parking space, would that be infringement? Now what if the apartment owner said, “You don’t need to buy the antenna, I’ll rent one to you, hook it up, and maintain it.”. Is that infringement? I would assert that none of these situations is infringement. Because I don’t see how they are materially different with respect to the transmission clause.
As an aside it move like this: http://tinyurl.com/cg6xyeu which cause fuel things like Aereos. If providers would just pay attention to what the public is looking for, there would be less interest in developing these ideas and those services would have much more difficulty getting off the ground.
Audie Morrow II says:
April 15, 2013 at 10:22 pm
Joe, kuddos to you for acknowledging that I’m correct, “to a point.” Listening in your car or standing on a sidewalk outside an open-air concert venue is “fair use.” So, why can you not record from an outside location and sell the music? A perfect analogy to picking up “free” off-air TV broadcasts and re-selling them to distant viewers. And I believe that word, “distant” is one of those important “details” to which you attach great importance. Aereo is clearly engaging in exactly the same business as MVPDs – a construct for which copyright laws are very well established. Note, Cablevision made no claim that the TV stations it carries – and pays – are not entitled to that compensation and, therefore, that Cablevision’s retrans contracts should be voided. The bottom line is, you have yet to point a single word in the copyright laws that alludes to how an MVPD receives the OTA TV broadcast signals they re-transmit to subscribers. The reason is, as spelled out in my first piece, that it’s totally irrelevant. So Aereo’s success, so far, making its particular antenna reception scheme the issue, is as puzzling as it is outrageous, given what the law says.
Kristine Lindsey says:
April 15, 2013 at 11:00 pm
Lee said: “… kuddos to you for acknowledging that I’m correct, “to a point.”…”
That only goes so far and is only to say that the copyright law in question doesn’t concern how the transmission occurs only whether it is public or private.
Lee said: “… The bottom line is, you have yet to point a single word in the copyright laws that alludes to how an MVPD receives the OTA TV broadcast signals they re-transmit to subscribers. …”
The bottom line is that it’s largely irrelevant to the question. The mechanism of receiving is only relevant insofar as it relates to the question of public v. private. I can retransmit the OTA signal to anywhere in my house by any mechanism I choose so long as it’s not a public transmission. It seems to me you choose to consistently ignore this major detail. I’ve already explained the problem with your analogy in my previous reply so I won’t be going back there unless you have more to add that can pull it a bit closer to the situation being discussed. Perhaps you would be interested in taking a crack at the situations I asked you about.
Audie Morrow II says:
April 16, 2013 at 10:01 am
Joe P., you’re attempting to rewrite the Copyright Act. The changes in ’76 and ’94 created a specific rubric for broadcast stations and cable companies, later expanded to include DBS operators – there is no reference to what means MVPDs to obtain the TV stations’ OTA signal. There is no such rubric for transmitting inside your house or any other of the scenarios you described previously.