Only 1 stream is allowed at a time with Dish Anywhere, and also if the courts go by that reasoning retail Slingboxes and all whole-home DVRs will also be made illegal.
FOX Thinks Aereo = DISH Anywhere
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Only 1 stream is allowed at a time with Dish Anywhere, and also if the courts go by that reasoning retail Slingboxes and all whole-home DVRs will also be made illegal.
With Aereo, the court said that even though the equipment was leased and operated by a consumer, Aereo was the party performing the copyrighted works. The fact that multiple people were streaming the copyrighted works at the same time made it a public performance. A single Hopper with Sling can only stream 1 show at a time. However if Dish is considered to be the party streaming on all Dish owned receivers, Dish will be streaming live events to many more than 1 party at the same time.
Retail Slingboxes should be OK because Echostar does not own and is not operating the boxes. It would be interesting to see how the courts would classify the whole home DVR based on this ruling, but I doubt Fox will try to stop them from connecting to multiple TVs in a single subscribers residence. At some point, the subscribers will feel as though Fox is attacking them instead of Dish.
Retail Slingboxes should be OK because Echostar does not own and is not operating the boxes. It would be interesting to see how the courts would classify the whole home DVR based on this ruling, but I doubt Fox will try to stop them from connecting to multiple TVs in a single subscribers residence. At some point, the subscribers will feel as though Fox is attacking them instead of Dish.
Fox IS attacking them. They are just doing it indirectly through Dish.
I do agree with you. However, the vast majority of subscribers just see things like this as fights between large companies. When Fox Sports South blacks out Braves games to get more money, the vast majority of subscribers blame the provider. When Disney forces everyone to get all of the ESPN, all of the ABC, and all of the Disney channels to get any of them, the vast majority of subscribers blame the provider. When prices go up, the vast majority blame the provider. People do not realize that the majority of those issues are created by the channel owners. If the average subscriber could no longer watch TV on a Joey in his bedroom, and Dish had a banner on the guide stating that Joeys were turned off because of a lawsuit by Fox, he might at that point be upset with Fox.
But lack of specificity on law is ALWAYS a roadblock to what many think should be easily applied to all sorts of circumstances. That's what "loopholes" are and those "loopholes" are often ruled LEGAL: meaning it is up to Congress to address.
Further, what the court did was a form of legislation in that Congress could have easily passed legislation that pretty much said what the Court said: that despite the technology in the background, if something looks like an MVPD service, than it is an MVPD service and MUST negotiate with the rights holder to retransmit those signals--in ANY form. The point is, that is Congress's job, and NOT the Court's and that is why the 3 dissenting judges were of the opinion that Areo was legal, even though those same Justices FELT, BELIEVED that Aero was, at heart, illegal by exploiting "loopholes" in the law and was not what Congress intended, but those 3 Justices also believed that it is not their role to legislate (At least on this issue. They've legislated on other issues, however). Congress closes (or not) the loopholes, not the Supreme Court. It's a matter whose job is what and the PROPER check and balance of the 3 branches of our government. Of course, Constitutional questions are another matter where often it truly is up to the Supreme Court alone to play it's "infallibility" Pope-like role.
The problem with this is that this particular law works backwards from how most laws work. OTA broadcasts are an EXEMPTION from copyright law. The law makes the retransmission of them legal. It is not making it illegal. Every part of the OTA transmission is copyrighted in one way or another by an incredible number of interested people. You have writers, song writers, musicians, actors, producers, directors, etc. all with copyright claims. The OTA/cable/DBS laws give a blanket copyright exemption to all these potential copyrights provided certain conditions are met.
So, if you do not follow the rules and intentions of congress with respect to the reception of OTA signals you do not get the exemption and are guilty of copyright infringement unless you get the rights signed off on for every possible person involved. Remember in this case Aereo was making a profit off all these copyrighted works without any agreements to any party.
The SCOTUS decision did not address any of the issues you presented. I do think you need to check your statement that OTA broadcasters have blanket exemptions. They still must have the rights to works in order to broadcast them. If they did not, then every channel would carry the SuperBowl. This lawsuit dealt with the broadcasters, not the copyright owners. There is agreement that the transmission of the broadcasts violates copyright because it is a "public performance". The total argument in the opinion and the dissent was whether the violation was fair use. The factors used in the decision were whether Aereo or the customer were "performing", and whether the performance was "public" or "private".
As it has been stated several times here, Scalia specifically said that what Aereo is doing SHOULD not be legal, but that they are following the letter of the law. He did not say that Aereo should be allowed to continue. He said that if Aereo is to be stopped, it is up to the legislature to fix the issues with the law. It is my opinion that we should follow the laws as written. If we allow judges to interpret around the actual text of laws, then you can never be sure what you are actually required to do. If the speed limit is 65mph, a police officer wants to ticket you at 62mph, can the judge determine that he believes that the speed limit should have been 60mph in that area and fine you anyway? If you run a liquor store, can you be convicted of selling beer to a 22yo because the police and judge don't think he was mature enough to drink? I know that those are extreme examples, but IF the courts can determine what the law "should" be instead of what they actually are, many unforeseen things will happen.
Satellite LiL last reauthorization bill: http://www.gpo.gov/fdsys/pkg/BILLS-111s3333enr/pdf/BILLS-111s3333enr.pdf
I refer you to section 103:
As you can see the law grants a statutory license allowing the satellite programmer to rebroadcast the OTA station in a secondary transmission (i.e. from the satellite) if they follow the rules including (ii) which the broadcaster (distributor) has contracted with them.
The statutory license lets the satellite company broadcast the signal without having to get copyright clearance from everyone involved, just the broadcasting station.
A very similar law exists for cable which was mentioned in the Aereo decision.
The satellite transmissions and cable transmissions are statutory licenses allowing them to bypass the copyrights of the broadcast for the retransmission.
Aereo was claiming they were not retransmitting the signals, that the end user was doing it instead. The court ruled that it was not the individual but Aereo doing the secondary transmissions and acting like a cable company. Yes 3 judges disagreed, but that does not matter...
So, for Aereo to get the statutory license to rebroadcast they would have to get the permission of the broadcaster.
As I stated above the cable and satellite laws allow for a copyright exemption via statutory licensing of all the material, working backwards by making it legal to retransmit.
I refer you to section 103:
As you can see the law grants a statutory license allowing the satellite programmer to rebroadcast the OTA station in a secondary transmission (i.e. from the satellite) if they follow the rules including (ii) which the broadcaster (distributor) has contracted with them.
The statutory license lets the satellite company broadcast the signal without having to get copyright clearance from everyone involved, just the broadcasting station.
A very similar law exists for cable which was mentioned in the Aereo decision.
The satellite transmissions and cable transmissions are statutory licenses allowing them to bypass the copyrights of the broadcast for the retransmission.
Aereo was claiming they were not retransmitting the signals, that the end user was doing it instead. The court ruled that it was not the individual but Aereo doing the secondary transmissions and acting like a cable company. Yes 3 judges disagreed, but that does not matter...
So, for Aereo to get the statutory license to rebroadcast they would have to get the permission of the broadcaster.
As I stated above the cable and satellite laws allow for a copyright exemption via statutory licensing of all the material, working backwards by making it legal to retransmit.
I did understand what you were saying. What I have been saying is that the majority's decision did not address the question of whether the transmission violated copyright law. It clearly does. Aereo did not claim to be a satellite or cable company, and did not claim to have the protection of the laws that you reference. There was no reason for the court to look at the statutory licenses granted to satellite companies. There was no reason for the court to use the law regulating cable companies, because according to the text of that law, Aereo does not qualify as a cable company. The majority basically said that no matter what the technology behind Aereo is, they look like a cable company to the end user and should therefore be subject to the same regulation. That is pretty much the same as saying that if you sell IBC rootbeer to a minor, that you can be proscuted for selling alcohol to a minor. IBC does not contain alcohol, but it looks like a beer bottle, so arrest him. The actual text of a law should matter, because if it does not you can never be sure if a judge will determine that you are violating the law.
Well the arguments went before the appeals court on Monday. A couple of articles on it:
http://www.multichannel.com/news/policy/fox-pitches-ninth-circuit-dish-injunction/375747
Dish points out that Sling has been around 9 years without Fox suing:
http://variety.com/2014/tv/news/fox-challenges-dish-networks-sling-service-1201258558/
One of the Judges was skeptical that Aereo decision applied:
http://www.multichannel.com/news/policy/fox-pitches-ninth-circuit-dish-injunction/375747
Dish points out that Sling has been around 9 years without Fox suing:
http://variety.com/2014/tv/news/fox-challenges-dish-networks-sling-service-1201258558/
One of the Judges was skeptical that Aereo decision applied:
Until the Hopper with sling, the consumers devices were doing the transmitting. within the past year, Dish owned equipment began transmitting. The Sling Box and Sling Adapter were both consumer owned equipment that was transmitting.
Appeals court Judges and SCOTUS Judges almost always ask hard questions to lawyers of both sides. Many times Judges will ask questions that lead the press to believe they will decide one way, but the Judges actually decide another. Until a decision is issued, it is extremely difficult to know if questions point to a line of reasoning, or are simply asked to help guide the language of the decision.
I do not think that you and I are as far apart on these issues as you seem to think. Whether or not Aereo "should" be legal is a totally different argument than whether under the current law Aereo was operating legally. I tried to point out earlier in this thread that the SCOTUS decision was going to open up a lot of new litigation. I have tried to point out in the Fox Ninth Circuit thread that using the Scotus decision reasoning; Dish owned equipment is transmitting, the near-live transmission goes to multiple parties at the same time, According to Fox Dish does not have a license for the secondary transmission; Fox can make a strong argument that Hopper with Sling does in fact meet most if not all of the "non-technical" attributes that Scotus used to find Aereo to be illegal. I do not disagree that under the mid 1970s law, Aereo "should" not be legal. I do agree that Hopper with Sling should be legal. The SCOTUS decision said that the underlying technology should not matter. They loosely defined Aereo "like" so that a very strong argument can be made that Hopper with Sling fits that definition. I predict a lot more litigation will follow. How this Fox litigation will be decided, I don't know based upon the SCOTUS decision. What I do know is that we will now need a SCOTUS decision in order to better define the last SCOTUS decision.
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Fox is being paid for the direct transmission to the subscribers house. According to Fox, the contract with Dish specifically prohibits any secondary or internet transmission. Should Fox even be able to litigate such a claim? Absolutely not. However the Supreme Court has opened the door to such things by being incredibly sloppy.
Two things continuously bother me about the Supreme Court 1) the average age of these people is 68 years old, and we have them ruling on technology matters that were unthinkable 20 years ago. Sorry for the age discrimination but its human nature to not learn about new stuff after we turn 60 years old. And 2) that they rule on what they think the law should be, and not what the law is. Aereo was completely within the law, albeit thru a loophole. What they were doing was no different than 3 of my friends asking me to setup tv antennas in my house with a dvr attached so they could access it, then compensating me for my fixed cost and time maintaining them.
The 922 had built in sling (released 4 years ago, April 2010), the 622/722 required a sling add on accessory to be bought by the consumer. It would be interesting if there was a leased vs owned issue, but the leased equipment is on customer premises and uses customer resources (i.e. their own DVR recordings and internet connection).
According SCOTUS that should solve it. Fox might could make arguments about owned or leased equipment connecting through the DishAnywhere website, but I don't think that would work very well.
The 922 never was very widely used, and was well before this recent decision. I mentioned in one of the threads that a big difference between HWS and Aereo is that Aereo's equipment was all on property controlled by Aereo. It depends on how the courts look at it. If you draw a map with all of the HWS devices pinned on it, they will be spread all around the country. If you make a Visio document with a rectangle around all of the HWS devices owned by Dish and show the streams connected to thousands of people watching the stream, it will look alarmingly like Aereo.
The Aereo decision only addressed near-live streaming, not DVR recordings.
Like I said before, I don't believe there should not be any concern about HWS. However, if you take a Visio diagram such as I described of Dish and place it next to the same diagram of Aereo, they will be identical.
Am I the only one that beleives dish is going to win this one? I don't see the comparison. I understand how you can say they both stream, but the fact is dish has the rights for retransmission. You can not use more than 3 tuners on one hopper to stream to one DA account. Aereo, to the best of my knowledge, was not paying anything for retransmission. The person subscribed to the channel that dish pays fox for(subscriber), is the only one technically allowed to use DA. Hence the limit on authorized devices. Aereo did not hold any of these restrictions(again to the best of my knowledge). They are worlds apart
