[HN Gopher] A $795M analogy: Locast, broadcast copyright, and th...
       ___________________________________________________________________
        
       A $795M analogy: Locast, broadcast copyright, and the fall of big
       antenna
        
       Author : bluecheese33
       Score  : 62 points
       Date   : 2021-09-17 13:20 UTC (9 hours ago)
        
 (HTM) web link (ravik.substack.com)
 (TXT) w3m dump (ravik.substack.com)
        
       | enzanki_ars wrote:
       | What infuriates me the most about this ruling is that long term
       | effects of it. Locast did what they did and inserted ads every 15
       | minutes because they knew nobody would not contribute to hosting
       | costs without some reason. Had they made it so it was
       | interruption at the start only, _maybe_ it could have held up
       | better in court. And I agree on that front. Remove the donate
       | video from showing every 15 minutes, and only show it at the
       | start. Encourage funding through better on screen messages and
       | make it more clear that it's voluntary.
       | 
       | But the big part of the ruling was that it wasn't just how they
       | requested funding, but the why. The ruling argued that collecting
       | funds to expand more throughout the US was not valid for their
       | non-profit status for some reason that made no sense. And as a
       | result, it appears that a replacement will never exist, because
       | the cost of pulling all of these channels with careful and
       | specific antenna placement in a city, the hardware to pull all of
       | those channels in real time, re-encoding the feed from MPEG2 to
       | HLS/MP4 for the web, potentially making different qualities to
       | account for network conditions (can't remember if the M3U8
       | playlists from Locast did that or not), and the networking costs
       | of transmitting video are expensive.
       | 
       | And the lawsuit was stupid too. US TV channels are crammed to the
       | max with advertisements, so much so that it feels more like an ad
       | delivery mechanism than an entertainment delivery system. Locast
       | could have been advantageous as they would have actual data of
       | who is watching what when and where. Ad companies love that data,
       | and with traditional OTA feeds, they don't have that. Instead,
       | all of these OTA companies actively refuse offering the ability
       | to watch their streams online for free. Other than local news
       | content, everything else is locked behind a paywall of having an
       | active cable subscription. Why should I, as a consumer, pay $100
       | a month to watch this same OTA content, just so I can watch it
       | online, especially for a medium so jam packed with ads?
       | 
       | I live in the edge of Columbus, Ohio in an apartment. I'm still
       | within 10 miles of the transmitters for the big 6 stations (the
       | local affiliates of ABC, NBC, CBS, FOX, CW, and PBS collectively
       | only use 4 transmitters.). My apartment is luckily facing sort of
       | line of site to most of those transmitters. But even then, I
       | still have bad signal issues with those channels, and in some
       | cases leading to an unwatchable recording. The signal was bad
       | enough that my recording of the 2020 Tokyo Olympic Opening
       | Ceremonies was bared by loss of 2 to 5 seconds of video and audio
       | every 2 minutes. My only alternative was to play $65 to $100 a
       | month to cable or cordcutting subscription to watch that
       | broadcast online. And out of spite for continuing to shutdown any
       | free way to watch their OTA content online, I will _never_ pay.
       | Our laws regarding OTA broadcasts and how people can use and view
       | them need to change ASAP, otherwise what is the point of having
       | them if is not accessible to all.
        
         | commandlinefan wrote:
         | > actively refuse offering the ability to watch their streams
         | online for free
         | 
         | They probably have exclusivity contracts with the cable
         | providers. They're sliding into irrelevance already, but will
         | probably make their services completely available on the
         | internet a few years after their slide into total irrelevance
         | is complete.
        
         | LocalH wrote:
         | Regulatory capture at its finest. I presume you're aware of
         | retransmission consent, the mechanism that allows local
         | stations (whether network-owned or not) to demand payment for
         | carriage of their signal, that carries 90% or more content that
         | the station does not own, but merely has license to broadcast.
         | This would be fine if most stations weren't part of large
         | station groups that own dozens of stations. These large station
         | groups demand higher and higher fees from operators (and both
         | sides of every argument are always presented as "[the other
         | side] wants to take your [network] away because they [want too
         | much/won't pay enough], call them to demand they stop doing
         | that", when the average person who would see those messages
         | does not have the knowledge to understand how it works, because
         | they quite rightly have more important things to worry about).
         | 
         | The networks can be shitty to their non-owned-and operated
         | stations too. The long-term local ABC affiliate got shafted a
         | few years back. They'd been an affiliate since 1969. ABC
         | demanded a substantially larger amount of money to renew the
         | affiliation than they had in the past. The station initially
         | tried to negotiate the amount down, ABC refused to budge. After
         | careful consideration, the station decided to nonetheless agree
         | to ABC's demands. After all that, ABC still turned around and
         | basically said "nah, forget it" and went with their direct
         | competitor in the market, who already operated the CBS
         | affiliate. ABC and CBS are now subchannels of the same
         | broadcaster, who happens to be owned by one of the larger
         | station groups. The networks do this because it gives the
         | stations more leverage to demand more from operators, and the
         | station groups have more capital than smaller independently-
         | owned stations. The networks also directly benefit, as the
         | stations in the larger, more flagship markets tends to be
         | network owned and operated (O&O). A station group that says "we
         | own X number of stations and unless you pay us more money,
         | we'll restrict your carriage of _all of them_ " has a lot more
         | pull than a company that owns one station.
         | 
         | There is actually a choice, but it's on the broadcaster's end.
         | A station can elect to choose "must-carry" status, where the
         | operator transmits the signal with no compensation (which
         | generally only applies to a station's primary subchannel), or a
         | station can demand payment for retransmission.
         | 
         | If cable was invented today, the networks would have it shut
         | down in a hot minute.
        
         | gamblor956 wrote:
         | _The ruling argued that collecting funds to expand more
         | throughout the US was not valid for their non-profit status for
         | some reason that made no sense._
         | 
         | The law granting them the exception from copyright law that
         | would have allowed them to stream in the first place strictly
         | limited the way funds could be raised and spent by entities
         | claiming the non-profit exemption.
         | 
         | The law is several decades old, and predates the internet. It
         | wasn't the subject of regulatory capture by the cable
         | companies, who were in their infancy when the law was first
         | passed.
         | 
         | Locast chose not to operate like a non-profit, and made a
         | profit on their streaming services, in violation of the law.
         | It's really that simple.
        
           | enzanki_ars wrote:
           | Edit: Not a lawyer, and what follows is intended to be more
           | of outlining my understanding and trying to ask clarification
           | on what I'm clearly missing. Sorry if it sounds a bit
           | defensive. Just a very strange lawsuit, specifically in how
           | the service was forced to shutdown instead of being allowed
           | to continue to operate.
           | 
           | Isn't that a valid use of the non-profit status? That as long
           | as the funding from donations was going towards that
           | expansion only, it can still be considered a non-profit?
           | Looking at the quick Wikipedia definition, that seems to be
           | the case, if you consider Locast's mission is to provide
           | retransmission of OTA broadcasts to all people in the US.
           | 
           | > "A second misconception is that nonprofit organizations may
           | not make a profit. Although the goal of nonprofits isn't
           | specifically to maximize profits, they still have to operate
           | as a fiscally responsible business. They must manage their
           | income (both grants and donations and income from services)
           | and expenses so as to remain a fiscally viable entity.
           | Nonprofits have the responsibility of focusing on being
           | professional, financially responsible, replacing self-
           | interest and profit motive with mission motive." [1]
           | 
           | PBS is also a non-profit, but PBS does something similar in
           | that certain content is locked behind their "PBS Passport"
           | subscription. If this ruling that requiring donations view
           | without interruption, then PBS is also violating non-profit
           | status based on your statement regarding "Locast chose not to
           | operate like a non-profit." But Locast attempted to resolve
           | that and remove the interruptions entirely, but was still
           | required to completely shutdown and was given 0 chance to
           | adjust... My understanding about hte reasoning for shutting
           | down is that using collected funds, via any means, expansion
           | across the US isn't allowed for some questionable reason
           | under the section of the law Locast was using.
           | 
           | [1]: https://en.wikipedia.org/wiki/Nonprofit_organization#Man
           | agem...
        
             | gamblor956 wrote:
             | 1) This isn't about their 501 non-profit status, it's about
             | their use of the non-profit exemption for re-transmission
             | of copyrighted materials through a service that would
             | otherwise be classified as violating copyrights.
             | 
             | 1) No, it's not a valid use of the money under the
             | restrictions of the non-profit exemption from copyright for
             | re-transmission. The law is quite clear on this point:
             | revenues derived from the violating service _must not
             | exceed_ the actual costs of providing that service.
             | Expansion costs are not related to the costs of providing
             | _existing_ service, therefore they are not permitted under
             | the exemption.
             | 
             | 3) PBS is not even remotely the same thing, because it's
             | not the non-profit status that is at issue. PBS _owns and
             | /or licenses_ the content they broadcast and stream, so it
             | does not need an exemption from copyright laws. Locast does
             | not own or license the content it streams, so it does need
             | the exemption, and it violated the explicit requirements
             | for the exemption it needed.
             | 
             | 4) _But Locast attempted to resolve that and remove the
             | interruptions entirely, but was still required to
             | completely shutdown and was given 0 chance to adjust
             | Historically, using someone 's IP without their permission
             | resulted in statutory damages, and Locast should consider
             | themselves lucky they're not on the hook for those, as
             | statutory damages for copyright law can be as much as
             | $150,000 _per violation* for willful violations of
             | copyright law. * Tech was able to get away with the ask for
             | forgiveness business model for 3 decades, but generally the
             | law does not operate on "ask for forgiveness" basis. It's
             | irrelevant that they got "0 chance" to adjust since the
             | onus was on them to plan their activities in a way that
             | complied with the law.
        
       | WarOnPrivacy wrote:
       | I like how much of this is due to ever-racheting copyright laws
       | that America never, ever asked for - laws that were almost
       | certainly passed in response to seemingly endless campaign
       | donations.
        
       | WarOnPrivacy wrote:
       | _CHIEF JUSTICE SCALIA: But his question is, is there any reason
       | you did it other than not to violate the copyright laws?_
       | 
       | It's awesome how Aereo's efforts to _obey the law_ are what the
       | court didn 't like.
        
       | tyingq wrote:
       | For anyone that was using it personally, and was sad to see it
       | go:
       | 
       | I had a decent experience switching to using the Tablo Dual Lite.
       | It's a local TV tuner and DVR. Mine has 2 tuners, but they also a
       | 4 tuner device.
       | 
       | It does, unlike Locast, require fiddling around with an antenna,
       | but I guess the upside is that nobody can sue it into oblivion.
       | 
       | It does require a subscription for the guide ($5/month) and for
       | the built-in commercial skip (another $5/month), which isn't
       | terrific. But, the UI and the DVR seem more polished than what I
       | was getting using Locast with Stremium (cloud DVR) before. It
       | does take a few seconds to tune into a channel also, which can be
       | annoying.
        
       | magwa101 wrote:
       | Here's another one, I rent a movie online and have only 24/48
       | hours to watch it. Where does that come from??
        
       | kmeisthax wrote:
       | This article is making the engineer's mistake regarding reasoning
       | about copyright infringement and the law.
       | 
       | The courts do not care _how_ the copy was made, they care about
       | what markets the copying would allow someone to get into.  "Cloud
       | DVRs are OK but only if the kernel, filesystem, and hardware take
       | great pains to ensure separate physical storage locations for and
       | no compression on each customer-created copy" is absurd and no
       | judge is going to go for that.
       | 
       | No, the courts aren't saying "if you waste a bunch of money on
       | extra hard drives, you can infringe copyright", either. Their
       | concern is providing a demarcation line between "things the
       | customer has done with your service" and "things your service
       | provides on it's own". Yes, this line is going to be fuzzy, but
       | it's fuzziness has nothing to do with how the bits are stored. It
       | has to do with the context of the markets in which works are
       | ordinarily sold.
       | 
       | >I originally thought the strangeness of digital copyright
       | outcomes reflected a lack of technical literacy in the courts.
       | But for the most part, I find the Aereo discussion shows general
       | digital competency, and an appropriate aesthetic disgust for the
       | "identical bits are different" problem.
       | 
       | Remember how after the Napster lawsuit, everyone was parroting
       | the thought-terminating cliche "the law needs to catch up to
       | technology"? Yeah... no. In reality the law is almost always
       | three steps ahead of technology, because the law is written in a
       | programming language that executes what you intended to write,
       | not what you actually wrote.
        
         | zerocrates wrote:
         | Engineer-types certainly do try to loophole their way around
         | the law in a way that's not how the law actually works, but
         | this article is not really engaging in that I don't think (for
         | one, it calls out the practice).
         | 
         |  _Cablevision_ is absolutely by its terms hugely reliant on the
         | nitty-gritty technical details of how the DVR service there
         | worked. The court had to kind of wind itself up in knots to
         | work around the existing _MAI v. Peak_ precedent (copies to RAM
         | are actionable infringing copies) and the fact that the service
         | existed just to make these copies, so it gets very in the weeds
         | on how things are stored and the amount of time things are in
         | buffers and so on.
         | 
         | Ultimately, it's probably true the most important thing was
         | that Cablevision were an established player in an existing,
         | uncontroversial market and they were making an iteration on the
         | already allowed and understood "time-shifting" recording
         | systems. But other players in the market shouldn't really be
         | faulted for taking the court at its word that the details
         | actually mattered. Sometimes they really do!
         | 
         |  _MAI v. Peak_ , mentioned in the article and above in my
         | comment is a great example of that: the 9th Circuit holds that
         | a computer copying the OS into RAM is a "copy" for the
         | Copyright Act, thanks to the statutory definition of a work
         | being "fixed." Result: a repair technician violates copyright
         | by turning on the computer because he doesn't have a license.
         | This is kind of the polar opposite type of decision to, say,
         | Aereo's case: it's actually quite disruptive but hinges more on
         | the literal definitions in the law and things like the computer
         | not being on already, thus requiring the "copy" to be made.
         | Congress actually changed the Copyright Act to counter this
         | decision but in an extremely specific way, so the general
         | "stuff in RAM is fixed and therefore a copy" principle remains
         | and comes up often.
         | 
         | Aereo lost because they would upset the applecart of
         | retransmission fees, Locast similarly though for nominally
         | quite different reasons. It can be quite difficult to tell in
         | advance if you're going to get a "letter of the law" decision
         | from the courts or something more results-oriented, even from
         | the same court.
         | 
         | An often-unappreciated wrinkle is the more or less total
         | dysfunction of Congress leading to court decisions taking on
         | ever more importance. The courts themselves aren't blind to
         | this, leading probably to more results-oriented decisionmaking
         | than there might be otherwise.
        
         | laserlight wrote:
         | > "Cloud DVRs are OK but only if the kernel, filesystem, and
         | hardware take great pains to ensure separate physical storage
         | locations for and no compression on each customer-created copy"
         | is absurd and no judge is going to go for that.
         | 
         | Reminds me of Aereo, the company that rented remote antennas to
         | customers so that they can stream over the Internet what their
         | antennas captured. Supreme court decided that they were
         | violating copyright law [0].
         | 
         | [0] https://arstechnica.com/tech-policy/2014/06/supreme-court-
         | pu...
        
           | laserlight wrote:
           | I just noticed that Aereo was already part of the discussion.
        
           | Nasrudith wrote:
           | To put it in other terms it didn't fall, it was slammed to
           | the ground.
        
         | bluecheese33 wrote:
         | Thanks for the read (post author here)!
         | 
         | As I mentioned, I am willing to admit that I came into this
         | expecting to find technical illiteracy, and I didn't find much.
         | I agree that the mindset to look for hacks and oversights in
         | laws is a naieve engineer tendency.
         | 
         | > No, the courts aren't saying "if you waste a bunch of money
         | on extra hard drives, you can infringe copyright", either.
         | 
         | I agree no court wants this, and I didn't intend to imply
         | otherwise in the post. Regardless, as a result of these cases,
         | this is the current state the DVR industry is in as I
         | understand. Wasting money on storage does insulate you from
         | infringement, and people do it to be safe.
         | 
         | > a programming language that executes what you intended to
         | write, not what you actually wrote
         | 
         | This is a great analogy. It does clearly get more complex when
         | the court is executing "what you would have intended had you
         | known about the internet" though.
         | 
         | Edit: On,
         | 
         | > The courts do not care how the copy was made
         | 
         | In Cablevision, they did for two reasons:
         | 
         | 1. To figure out whether buffering was copying, which is a very
         | technical discussion. See the footnote on MAI Systems
         | 
         | 2. To figure out WHO was making the copy, for the volition
         | based infringement test
         | 
         | My point here is that it really does get into the technical
         | weeds. I know your point was mostly to just dismiss the
         | deduplication discussion, which is reasonable. If one of my
         | posed problems made it to court, the court would probably just
         | do the "right thing". However, since they haven't made it to
         | court yet, companies don't necessarily want to be the first to
         | gamble on it.
        
         | rektide wrote:
         | It's possible that the courts/law are so absurd that they could
         | be wrong. Rarely is that considered.
        
           | jjoonathan wrote:
           | In theory, that's what the legislature is for.
           | 
           | In practice, the process for this is completely broken, so we
           | have a system where the judicial branch pretends to divinate
           | intent from the tea-leaves of legislation, even when it's
           | clear that there could not possibly have been any informed
           | intent because major relevant details were simply not known
           | at the time.
           | 
           | It's not great, but it's better than a system where the
           | judicial branch just does anything it wants.
           | 
           | All this said, instant communication and computers almost
           | certainly introduced better forms of judicial and legislative
           | process that haven't been experimented with because of
           | inertia. I wouldn't volunteer our system as the guinea pig,
           | but I hope that somebody gets around to experimenting with
           | this, because our system sucks hard in a bunch of ways that
           | seem like they are probably fixable.
        
       | madars wrote:
       | > Since congress included [the non-profit] exemption, presumably
       | there is some way to qualify for it, otherwise it wouldn't exist.
       | 
       | Puffer is probably that: https://puffer.stanford.edu/
        
       | projektfu wrote:
       | I think the issue is that the public hasn't been invited to
       | participate in the discussion of what we want copyright law to
       | look like in a very long time. Considering the last major change,
       | the Sonny Bono Copyright Term Extension Act, was 23 years ago,
       | and essentially written by the industry and never seriously
       | debated in the public interest, I don't have good hopes for the
       | future in this area.
       | 
       | I think the Supreme Court is going to continue to rule that neat
       | hacks are not really going to get you out of what the law says,
       | but also that the "content producers" are not going to be able to
       | arbitrarily restrict a reasonable service as in the Cablevision
       | case.
       | 
       | What the public really wants is a way to enable the thing they
       | want without either exorbitant costs or heavy annoyances. We're
       | not getting that because the system is not set up for automating
       | micropayments or microdonations and the big operators are writing
       | all the rules. For example, if I pay for a streaming service and
       | listen only to one obscure band, I would expect that my monthly
       | fee would go to them. Instead it goes to the top 100 and a tiny
       | fraction goes to my obscure band, who really don't benefit at all
       | from being on the service. If I had a micropayment platform, my
       | consumption could be going to that band with a fraction going to
       | support the platform.
       | 
       | In other words, record companies are killing music, and it's
       | legal. That's what we need to fix.
        
         | gamblor956 wrote:
         | _In other words, record companies are killing music, and it 's
         | legal. That's what we need to fix. _
         | 
         | Record companies are paying for the music. It takes a lot of
         | money to produce tracks. Most artists never get enough fans or
         | sales to pay off the investment the record company made in
         | them, so the hits very much pay for the failures.
        
           | shadilay wrote:
           | The world no longer needs conglomerate record companies.
           | Their antiquated business model is not a valid reason
           | government should step in to protect them. The barrier to
           | entry for artists making and releasing/monetizing music has
           | never been lower. The artists can just make music at home and
           | bootstrap themselves, no investment needed.
        
             | gamblor956 wrote:
             | Artists have always been able to make music and perform by
             | themselves. But all of that other stuff needed to make it
             | big is expensive (marketing, paying for venues, logistics,
             | recording and producing masters, distribution, etc.), and
             | few artists have the trust fund money needed to handle
             | those costs themselves.
             | 
             | Even Justin Bieber, Lorde, and Billy Eilish depended on
             | record labels to actually _profit_ from their music, though
             | they all broke out on social media platforms on their own.
        
             | mschuster91 wrote:
             | > The artists can just make music at home and bootstrap
             | themselves, no investment needed.
             | 
             | The barrier has never been lower indeed, but it's _the
             | barrier to get started_ and it 's still easily a many-
             | thousand-dollars affair - a good recording and Soundcloud
             | isn't everything you need to make money, especially not on
             | a scale you'll be able to make a living from. Production of
             | physical media (especially currently en vogue vinyls) is
             | expensive plus there is a very real "inventory risk" (aka,
             | the risk of being stuck with a truckload of vinyls no one
             | wants to buy). Events and concerts are expensive AF to set
             | up if you want more than your local community center or
             | pub, touring is even harder to pull off (and the bigger the
             | venue the more expensive the upfront, non-refundable costs
             | go).
             | 
             | Most small cover and indie bands barely make ends meet,
             | most work full-time jobs to finance their band hobby and
             | spend sometimes their entire weekends and vacation time
             | because they have to do lighting, rigging and sound system
             | setup themselves wherever they get a gig. And corona has
             | raided everyone's funds dry.
             | 
             | Not to say big studios aren't a bunch of unscrupulous,
             | exploitative vipers _because they are_ , but unfortunately
             | their business model is far from dead.
             | 
             | (Source: know people still in this business, did myself a
             | stint as a stagehand and as a renter of my small scale
             | sound/light setup a couple years ago)
        
               | shadilay wrote:
               | A few thousand dollars is no barrier for someone with a
               | regular job and music for a hobby. As for vinyls and
               | other physical products artists can always take
               | refundable preorders. Not everyone can or should be a
               | full time professional artist. Nor is the the role of
               | record companies to decide what the public likes.
        
       | AlbertCory wrote:
       | I sympathize with the guy who had line-of-sight issues. Or anyone
       | who lives in a multi-unit building, or far from the Big Antennas.
       | 
       | However, I just got an antenna ($80) and had it installed on my
       | roof. 40 miles or so to Twin Peaks' antennas, no obstacles. Boom:
       | 800 channels (some paywalled), many in languages other than
       | English.
       | 
       | Next is to roll my own DVR. Should be easy, right?
        
         | nickysielicki wrote:
         | Look into TVHeadend for this with xmltv for epg. It's awesome.
         | I'm more into enigma2 because most of what I consume is DVB-S,
         | but for ATSC you can't beat TVHeadend.
        
         | flatiron wrote:
         | i pay for plex (it was $75 when i got it years ago) and it has
         | a very good dvr and hd homerunner support. it is closed source
         | for profit but runs well on linux
         | 
         | i was using locast as my "antennae" until weeks ago. my wife
         | refuses to let me put an antennae on the roof or inside for
         | aesthetics so its back to cable card from the darn cable
         | company.
        
           | kesslern wrote:
           | It's not as good as a roof antenna, but attic antennas are a
           | decent option.
        
         | techsupporter wrote:
         | > I sympathize with the guy who had line-of-sight issues. Or
         | anyone who lives in a multi-unit building, or far from the Big
         | Antennas.
         | 
         | > However...
         | 
         | I don't mean to be uncharitable, but the "however" you wrote is
         | doing a lot of the work here. A lot of people are saying that
         | Locast is pointless or not a big deal because, well, _they_ put
         | up an antenna and it worked so no problem.
         | 
         | Except that it is a problem. I used Locast from the day it
         | became available in Seattle because, try as I might, I could
         | not get reception from all of the TV channels. Standalone
         | house, apartment, low to the ground, high up, didn't matter.
         | There are three broadcasting sites in Puget Sound and the best
         | I could do was 1 reliable, 1 iffy, and 1 not at all.
         | 
         | > Should be easy, right?
         | 
         | Should be, but isn't if you can't get signal. Locast offered
         | that signal (Comcast charges about $19 a month for the
         | privilege of having a plan with just local channels but also
         | charges $19 a month as a broadcast channels surcharge) for a
         | nice donation.
        
           | AlbertCory wrote:
           | > "I don't mean to be uncharitable, but the "however" you
           | wrote is doing a lot of the work here"
           | 
           | You are, though. I'm so sorry this happened to you. It must
           | be awful for you. I'll try to never mention anything good
           | that happened to me, ever again.
        
         | pxl wrote:
         | For $80/yr the Channels DVR is a great option
         | https://getchannels.com/plus/. I'm using it along with a
         | HDHomeRun and it just works great!
        
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