Saturday, April 21, 2012

Pondering the Aereo broadcast TV "retransmission"

I hate to link to Wired, because they are punk ass bitches, but this story is a an interesting object lesson.  This company Aereo is committing the unforgivable sin of recording and re-transmitting material that local television stations transmit free to all over the public airwaves.   It is marketed as an internet VCR, essentially.

Before continuing--have you actually checked out what is available for free over the air in your area, these days?  Odds are you will find you have a cable-esque variety of television channels, freely available, in astounding high definition.  All you have to do is stick up an antenna.  What was once one TV station is now three or four; you'll find music channels, weather, etc. etc.  It's really quite the something.

So let's break this down.  The local television stations provide a free, high quality feed, over the air, for anyone to intercept--on the public airwaves.  They are saying "please, listen and watch what I have to say".  It's not an encrypted communication, like your cable box.  It's just spewed out there, through the atmosphere and streaming through the walls of our houses and our bodies, every day, all day.  All you have to do is "listen".

What Aereo is doing is recording these broadcasts and streaming them over the internet to people who use their service.  And so of course, that just won't do.

I realize there are laws that may protect the broadcasters from this.  But please recall that this blog is all about our terrible, backward laws.  I'm talking about what is actually right and proper and just, not the opinion of our subverted legal system as it stands today.

So, breaking it down further--presuming, let's say, that Aereo leaves the commercials intact when they retransmit, aren't they actually providing a valuable service to the broadcasters by increasing their reach? Of course the broadcasters are upset--because they hate free money, right?

Anyway.  First, I want to point out how preposterous it is to insist on controlling something which you have put into the public airwaves for free.  Over the air broadcasts, in some ways, are even more like the internet than the internet.  Once something is digitized, it can be sent anywhere in the world on the internet with trivial ease.  But in the case of over the air broadcasts, you don't even need an internet connection.  Just stick your pinky in the air.

For example, I own an HD Homerun box.  It's an over-the-air digital TV tuner that sits on your network.  All I have to do is point my computer to it, and it starts filling up my hard drive with super high quality video.  Because that's what TV is--video.  MPEG-4 encoded video and sound data.  I dunno...I think as a geek I am still kinda bowled over by what is possible these days.  If you're not a geek, you probably don't appreciate just how much data is in an HDTV broadcast.   And this is data that the broadcasters give away for free, all day every day.  For their own self-interest, of course.  That being said, they are also using a limited government granted monopoly of a section of our public airwaves--definitely part of the commonweal, and licensed in a limited way to the broadcasters in the public interest.

Just something to think about, there.

So what makes this story really juicy for this blog is the fact that Aereo apparently intends to *charge* for the service at some point.  Aha!  By my own reckoning, this is a different thing altogether.  The question could be whether they are charging for the oh so sacred "content", or the service of streaming it?  This is basically Aereo's contention, that they are charging for a service, not the content.

So let's follow their line of logic.  If they can do it, anybody can start a service like this legally--and that might reduce Aereo's value proposition a bit. But that's not my problem--no one is owed a working business model.  But leaving the stream intact may make it a service, as opposed to a copyright infringement, in a natural law sense.  Since this is a DVR-like situation, let us consider four scenarios:

1. Aereo leaves commercials intact and doesn't charge for the service:  seems to me the broadcasters should pay them for extending their reach.  This would definitely fall into the idea of expanding fair use.

2. Aereo cuts out the commercials, altering the broadcast, and doesn't charge for the service: to my mind, this should be fair use as well.  Mind you, when I say "doesn't charge for it" I mean they don't make any money on it by selling ads on their website, any application they construct, etc.  Obviously, this is not a great business model and not many people would want to do it, but again, I think it should be legal.

Point being, it probably wouldn't happen very much, would it?

3. Aereo leaves the commercials intact and does charge for the service: originally, I leaned toward this being acceptable.  But the problem came when I pondered the significance of altering the data, which in the end I decided was irrelevant.  Once you start making money from making copies,  you're not doing fair use any more.  Also, once you go down the road of charging for a "service", it opens the door to websites charging for Hollywood movies, for example, for the "service", which is definitely--to my way of thinking--not okay.

We'll be talking about movies a lot in the coming months.  It's a tough road to hoe.

4. Aereo cuts out the commercials and charges for the service: yeah, this is not okay.  They are solely piggybacking on the work of others for profit, with no benefit whatsoever to the broadcaster (let alone the content creators--remember them? they don't even enter into the suit, which is interesting to me).

So in the end, the fact that Aereo may or may not be altering the data (cutting out commercials) doesn't matter, I don't think.  But I haven't even talked about the most intersting part of their proposition.

If you read the article, you'll see that what these crazy bastards have done is set up an individual antenna for each of their customers!  They are relying on a court ruling that is still percolating through the courts about remote DVR's.  But the idea, I think, is simply that "hey, this antenna belongs to my customer.  I'm just forwarding the data it collects to them".

And this underlines the preposterousness of the situation of broadcasters--who spew data for free through the air all around us--nitpicking how that data is used.  I mean, from a technical point of view, there is no point whatsoever to having a million separate antennas. It's a technical fiction to pay homage to a legal fiction.  Obviously there is no difference, in function, between having a million antennas and having one antenna.  Aereo could easily just record every channel in the New York area 24/7, save it all to a hard drive, and stream out from that whatever show a customer requests.

Who knows how it will turn out, but I bet it won't be a rational solution.  Really, the local broadcasters should just strike a deal with Aereo to provide the service free to users, and get a little money from the broadcasters for the useful service they are providing--both to broadcasters and the people of New York.  But I'm sure that will never happen.

But I don't think Aereo should be allowed to charge end users for the service without broadcasters (or copyright holders?) consent.

See?  I'm not against copyright.

Except...what is the difference between what they are doing and what TIVO does?  TIVO records the shows on your local drive, instead of at a remote location.  Does location matter in the age of the internet?  What if TIVO enabled you to watch the shows you record over the internet?  That's about the only thing they don't do, I daresay due to concerns about your home's uplink bandwidth.  But if you recoreded it on a device you own in your home, and played it over the internet, would that make you a bad guy?  And TIVO even makes money on the deal....

The issue here seems to be the physical location of the hard drive that records the data, when viewed in that light.

Sure would be nice not to have to worry about that sort of thing.  Isn't it confusing?  Doesn't it seem pretty pointless to bicker over such as this?  Don't we have anything better to do?

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