They did. But the more pressing issue the Supreme Court questioned was who owned the antenna and the recording device. They didn’t feel the little antenna that each subscriber had (at the central facility) was in fact the subscribers antenna and therefore it was Aero’s antena, subject to retransmission and carriage rights of the broadcasters. As I recall little, if any of the argument was focused on the legality of the recording of signal, but rather who was recording it (private consumer vs company).
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Actually FAIR USE allows for YOUR private recording and playback for time-shifting or place-shifting so long as YOU recorded--and YOU initiated that recording by some manner--the content on YOUR equipment in YOUR domicile, ONLY YOU have the rights to that content for the purposes stated above for ONLY YOUR personal viewing. That's the law.
HOWEVER . . .
Until very recently we were all violating the copyright of the Happy Birthday song (this is why restaurants would always sing some lame (or better) substitution for the commonly known Happy Birthday song) each time we sang it at kids and adults birthday parities because the gathering of more than 3 people constituted "publication" and "public performance" both violations of copyright.
So, of course the real world use of someone else's content (such as allowing a family member to view a DVD or Blu-ray you rented or purchased) constitutes a violation of the copyright, the full force of the FBI is not going to come down upon us for letting Grannie watch MY personal copy of some movie at home on HER device. On the other hand . . .
I do think it is a stretch to access significant amounts of content that was legally recorded for the personal use of that particular subscriber/household allowed under the agreements IMPOSED upon Dish by the owners of copyright as far as the permission granted by the copyright owners to archive that content to an external HDD. That amount of content isn't anybody's but the original subscriber's and by cancelling the Dish subscription, the content owners NO LONGER want ANYONE to access that content, as the studios see such requirements IMPPOSED UPON DISH as reasonble in protecting their copyright material from unauthorized access.
I believe many parts of DMCA and the durrent "Digital Rights" requierments imposed upon (v)MPVD's, and by extension imposed upon the consumer who are paying for that content, are examples of "over-reach." However, in this particular example, I would have to side with the copyright owners on three points:
1) Access was granted as part of "Digital Rights" to the MVPD and consumer beyond FAIR USE of content legally recorded to a local DVR in a domicile.
2) it was never your content.
3) The quantity of that content makes this a more egregious example of copyright violation.
Now, regardless of what DMCA may state, if one inherited a deceased parent's personal collection of DVD's/Blu-rays, etc., then one could probably prevail in court, if the studios were ever stupid enough to bring legal action against anyone for doing so, just like they won't sue anybody for ripping DVD's and Blu-rays for copy or to PERSONAL servers (along with the countless public articles from publications and individuals of exactly HOW to do it and people making money doing this for paying clients--so long as it is on a PERSONAL server; 3rd parties have been sued when content is stored on NON-personal servers) despite DMCA specifically prohibiting any circumvention of the encryption of the material on the media because the likely defense will be "Fair Use" which would cause that part of DMCA to be tested in a court of law with the very likely judgment, and subsequent appeals being in favor of the consumer with headlines screaming "Legal to Rip your DVD's and Blu-ray's." The studios will have shot themselves in the foot.
So, I concede that simply because something my be law, it very well may be struck down in a court of law, and if it seems to pass the test of Fair Use, then that would be the conclusion for each consumer to arrive at on their own, but this example is clearly not one of "Fair Use."
Actually, the ONLY issue was that SCOTUS believed that the broadcasters should be PAID. Aero passed all the tests for Fair Use in every lower court, that even the late conservative Associate Justice Anton Scalia stated in his dissent of SCOTUS ruling that although Aero was a Rubes Goldberg Machine that exploited loopholes in the law and avoided payment to the broadcaster that he thought was immoral, it nonetheless PASSED the tests for Fair Use, but that SCOTUS can not legeslate, but instead must rule in Aero's favor, but leave the matter for Congress, if they wished to address the matter. The majority's ruling was never so logical and seemed a Rubes Goldberg thought process itself: a pretzel of thought only because the majotiy THOUGHT the broadcasters SHOULD be paid even though the law did not allow for that. That's called a loophole, and it is ALWAYS the place of the legeslature to close loopholes, never courts and judges.
The SCOTUS ruling in favor of the Broadcasters was so ILLOGICAL and OUT OF LINE with all previous rulings regarding Fair Use, that the SCOTUS had to issue notices that this ruling SHOULD NOT be applied to ANY OTHER cases of Fair Use or ANY PREVIOUS rulings because this was just a one-time bizarre, freaky, unintelligent, illogical, EXCEPTION all unto its own. But even then several courts and attorneys asked for further clarificaion because the ruling seemed to invalidate many previous rulings. Then the dust settled and everybody just IGNORES the Aero case as being in its own universe
FWIW, IMHO believe that even if Aero had been ruled legal by SCOTUS, the NAB would have had new legislation drawn up for Congress to pass ASAP, and within weeks, probably less than 2 months after all the process to make it a bill, it would have PASSED Congress and would have outlawed Aero. That's how effective and ALMOST never losing NAB has been and is with Congress writing law the NAB way.
Unfortunately, Aero made the mistake of NOT going all out and getting as many subscribers as they could (they held back for SCOTUS) because they could have created critical mass to pressure congress to allow Aero, even in some modified way that would have preserved at least the live streaming part of Areo FREE of charge, so long as enough people made members of Congress fear for their re-election.
Personally, I thought Aero was only PARTIALLY legal. Remember, Aero was FREE for streaming, but you had to PAY for DVR services, and that was my problem with the ethics of Aero: As long as the consumer does NOT have to pay, Aero seems very LEGAL. On the other hand, once they charge for something, then that seems illegal without also paying the broadcasters.
So, it would have been very correct, IMHO, for SCOTUS to rule that Aero's PAID DVR service was NOT legal, but permit the FREE streaming part of Aero (and consumers would be free to record the stream under Fair Use). The DVR service would either have to be FREE of charge or if Aero wanted to charge for the DVR service, then Aero should pay the broadcasters and provide the DVR service in accordance with already court approved methods of storage for the Aero DVR content as per Fair Use rulings, which, I think Aero was already in compliance.
As always, the issue was MONEY.
Very nice summary of the Aero issue, as well as "fair use."
I happen to live in an area of San Diego, well within normal OTA range, but due to topography cannot receive OTA, and the Aero technology for conversion of OTA to streaming digital would have been great. I do agree that especially as a free service, Aero was legal as long as the local markets were preserved.
Why is it ok to listen to (pretty much) any radio station regardless of market (streaming on the internet), but not ok to watch TV stations in another market? But that is another discussion, and of couse, related to money.
If the last of this is really true, I have no idea how cover bands work; they would be in violation every weekend in every city/town across the US. When I was playing in one in the 80s/90s, our understanding was that we could show up a the bar, play for 4 hours, and get paid (usually a split of the cover charge collected) without copyright infringement. I thought, unless we were renting our own venues and charging for the show ourselves, we were in the clear.
I guess I could see the restaurants would be at risk, but not private b-day parties. I have no idea what the law says (and I'm too lazy to look right now), but this seems it would mean none of these bands could exist. I'm pretty sure none of the dive bars we played in were paying royalties - we often had to argue with the owners to get our own money.
