Guess What? You Can Get Away With It!
- Published on Thursday, 12 July 2012 17:58
- Pete Putman
- 0 Comments
Earlier this year, Aereo – a start-up company financed largely by veteran media executive Barry Diller – launched its service whereby over-the-air digital TV signal from New York City stations could be converted to Internet streams and delivered to subscribers as MPEG4 video for about $12 per month.
The major networks (many DTV stations in New York City are owned by networks) quickly sued Aereo in court, asking for a preliminary injunction to shut the service down. The plaintiffs, which include Disney’s WABC, Fox’s WNYW, and Comcast’s WNBC DTV stations, argued that (a) Aereo’s service was a violation of copyright rules since Aereo didn’t negotiate any retransmission agreements with the stations or networks and the retransmission constitute a de facto public performance, and (b) the nature of the tiny antennas Aereo uses made them impossible to work correctly unless connected as part of a larger array – at which point Aereo’s system was essentially a cable TV system.
From the start, Aereo has claimed that each of the tiny, dime-sized antennas was assigned to a specific subscriber, and all they were providing was a souped-up antenna system – albeit one that converts the received signals from the 8VSB RF modulation format to baseband video, and then encodes it as an MPEG4 stream for delivery to Apple and Roku boxes; all on a individual subscriber basis. One antenna, one subscriber.
However, if more than one person was using any of the components in the system – antenna, receiver, or encoders – then a reasonable argument could be made that Aereo would have to respect copyrights like anyone else.
After all, the nascent Zediva “play DVDs over the Internet” service was shut down over similar arguments last year. Zediva had racks of DVD players installed which would be controlled by end users over the Internet to play, pause, fast-forward, or reverse movies, streaming video back in the other direction. All Zediva personnel would do is load the actual discs. But the courts shut that one down quickly, using copyright law as the basis for their decision.
I received a copy of the Southern District of New York court decision (American Broadcasting Companies Inc. et al and WNET Inc. et al vs. Aereo) from a lawyer friend and read it with fascination. Apparently, the plaintiff’s expert witness didn’t do his homework correctly when it came to the subject of whether the tiny antennas were actually capable of functioning by themselves (a key part of the case) or only as part of a larger array.
According to the court decision, this expert did not testify in court, nor did he provide a detailed description of his test procedure. On the other hand, Aereo’s two expert witnesses did rebuke his findings and testified in court to that extent. So his claims that the tiny antenna arrays could not possibly function on their own were ultimately rejected by the judge as they could not be supported.
The second part of the decision revolved around the argument that Aereo actually provided a remote DVR service inasmuch as any program being watched through Aereo could be time-shifted for later viewing to some degree. The earlier decision in Cartoon Network LP, LLLP vs. CSC Holdings (the ‘Cablevision’ decision) was used as precedent, in that the time-shifted OTA signals could not be watched by more than one household at a time and thus were not ‘publicly performed works.’
I’ll leave it to the lawyers to determine whether the time-shifting portion of the argument holds water. But I want to re-visit the antenna argument.
By designing an array of tiny antennas at their head-end(s), Aereo can make a claim that each antenna serves just one customer. Imagine you could install an antenna on top of a large building next to yours and run a very long coaxial cable to your TV set so you can get better reception. Under that description, there is no copyright or retransmission infringement.
But if you then install a splitter and feed the signal to some of your neighbors, that is an infringement of copyright, strictly speaking – even if you don’t get a dime for your efforts. So Aereo argues that they get around that fine print with their tiny antennas.
Readers who understand RF theory can take one look at the Aereo antenna and understand immediately that it is not suited at all for UHF TV reception, let alone high-band channels 7, 11, and 13 (all used in New York City). It’s just electrically too small and has no resonance or gain at the desired frequencies.
Aereo’s expert witnesses got around that little problem by saying that there was 1,000 times the required signal strength at their receive location to pull in a signal, no matter how inefficient the antenna might appear. If that’s so, then why the fancy design? Why not just create thousands of tiny loop antennas? They would work just as well (or just as poorly, for that matter).
The plaintiff’s expert witness apparently conducted a flawed test on a solitary Aereo antenna for direct OTA reception (he modeled it on a computer), although he did test multiple elements as part of the antenna array and at one point shielded other antennas around the array to see what effect it would have.
But Aereo claims he made a mistake in positioning the antenna arrays so that they were vertically polarized (edge-on) instead of horizontally polarized, as Aereo has the array installed. I do know from experience that there is a large change in signal level at UHF frequencies when polarization angles are changed, upwards of 10 dB or more depending on the antenna design.
From my perspective, there would have to be a ton of signal strength to force any RF through that small rectangular loop. And its proximity to other antennas in the array actually makes up a larger array, thanks for inductive and capacitive coupling. So there’s no doubt in my mind that the larger array outperforms the individual element. (I’d need to see the array up close first to determine what type of antenna configuration it was emulating.)
Nevertheless, the plaintiff’s expert witness did not testify in person and did not provide convincing evidence of his argument ts, so the request for a preliminary injunction was denied.
Aereo, of course, hailed this as a victory for consumers, saying in a statement that “Today’s decision should serve as a signal to the public that control and choice are moving back into the hands of the consumer — that’s a powerful statement.”
That statement may be a bit premature, as all of the plaintiffs have vowed to continue their suit. In a New York Times story, a CBS spokesperson was quoted as saying “This is only a ruling on a preliminary injunction,” the broadcaster said. “This case is not over by a long shot.”
What I’m wondering is how many of the Aereo subscribers have actually tried to receive New York City DTV stations indoors. In my tests with current model televisions in urban areas, it doesn’t take an awful big antenna to get a decent signal. Of course, you wouldn’t then have the ability to time-shift that Aereo provides with their service, nor would you be able to watch on your iPad, iPhone, Droid, or other internet-connected device.
Stay tuned for more updates on this story – this is only the tip of the iceberg.