As J. Scalia points out, the 'standard' the Court has chosen is unclear. Maybe that would be legal, maybe it wouldn't be. We'll never know until either 1) Congress amends the law to be clear about that; 2) Someone tries it and the Court reverses this opinion in a useful way; or 3) Someone tries it and the Court rules squarely on that in light of this opinion.

One thing is for sure: Only someone with lots of resources and a lot of daring will even attempt to find out by actually trying it.

Yes. Sorry about the fucked up apostrophes, quotation marks, etc. I just copied and pasted from the opinion without previewing the post, like everyone does. I can't believe it's 2014 and this sort of thing still isn't automatically handled properly.

This case boiled down to one major issue: Whether the allegedly infringing conduct in this case was engaged in by either Aereo, or by its users. Don't get hung up on the public performance v. private performance issue; it was really certain that if Aereo was liable, that the performance was public; if it were the users, it would be private.

J. Scalia's dissent does a good job of explaining the issue:

There are two types of liability for copyright infringement: direct and secondary. As its name suggests, the former applies when an actor personally engages in infringing conduct. Secondary liability, by contrast, is a means of holding defendants responsible for infringement by third parties, even when the defendants âoehave not themselves engaged in the infringing activity.â It applies when a defendant âoeintentionally induc[es] or encourag[es]â infringing acts by others or profits from such acts âoewhile declining to exer- cise a right to stop or limit [them].â

Most suits against equipment manufacturers and service providers involve secondary-liability claims. For example, when movie studios sued to block the sale of Sonyâ(TM)s Betamax videocassette recorder (VCR), they argued that Sony was liable because its customers were making unauthorized copies. Record labels and movie studios relied on a similar theory when they sued Grokster and StreamCast, two providers of peer-to-peer file-sharing software.

This suit, or rather the portion of it before us here, is fundamentally different. The Networks claim that Aereo directly infringes their public-performance right. Accordingly, the Networks must prove that Aereo âoeperform[s]â copyrighted works, Â106(4), when its subscribers log in, select a channel, and push the âoewatchâ button. That process undoubtedly results in a performance; the question is who does the performing. If Aereoâ(TM)s subscribers perform but Aereo does not, the claim necessarily fails.
The Networksâ(TM) claim is governed by a simple but profoundly important rule: A defendant may be held directly liable only if it has engaged in volitional conduct that violates the Act. ...

A comparison between copy shops and video-on-demand services illustrates the point. A copy shop rents out photocopiers on a per-use basis. One customer might copy his 10-year-oldâ(TM)s drawingsâ"a perfectly lawful thing to doâ" while another might duplicate a famous artistâ(TM)s copyrighted photographsâ"a use clearly prohibited by Â106(1). Either way, the customer chooses the content and activates the copying function; the photocopier does nothing except in response to the customerâ(TM)s commands. Because the shop plays no role in selecting the content, it cannot be held directly liable when a customer makes an infringing copy.

Video-on-demand services, like photocopiers, respond automatically to user input, but they differ in one crucial respect: They choose the content. When a user signs in to Netflix, for example, âoethousands of . . . movies [and] TV episodesâ carefully curated by Netflix are âoeavailable to watch instantly.â That selection and arrangement by the service provider constitutes a volitional act directed to specific copyrighted works and thus serves as a basis for direct liability.

The distinction between direct and secondary liability would collapse if there were not a clear rule for determining whether the defendant committed the infringing act. The volitional-conduct requirement supplies that rule; its purpose is not to excuse defendants from accountability, but to channel the claims against them into the correct analytical track. Thus, in the example given above, the fact that the copy shop does not choose the content simply means that its culpability will be assessed using secondary-liability rules rather than direct-liability rules.

So which is Aereo: the copy shop or the video-on-demand service? In truth, it is neither. Rather, it is akin to a copy shop that provides its patrons with a library card. Aereo offers access to an automated system consisting of routers, servers, transcoders, and dime-sized antennae. Like a photocopier or VCR, that system lies dormant until a subscriber activates it. When a subscriber selects a pro- gram, Aereoâ(TM)s system picks up the relevant broadcast signal, translates its audio and video components into digital data, stores the data in a user-specific file, and transmits that fileâ(TM)s contents to the subscriber via the Internetâ"at which point the subscriberâ(TM)s laptop, tablet, or other device displays the broadcast just as an ordinary television would. ...

The only question is whether those performances are the product of Aereoâ(TM)s volitional conduct.

They are not. Unlike video-on-demand services, Aereo does not provide a prearranged assortment of movies and television shows. Rather, it assigns each subscriber an antenna thatâ"like a library cardâ"can be used to obtain whatever broadcasts are freely available. Some of those broadcasts are copyrighted; others are in the public do- main. The key point is that subscribers call all the shots: Aereoâ(TM)s automated system does not relay any program, copyrighted or not, until a subscriber selects the program and tells Aereo to relay it. Aereoâ(TM)s operation of that system is a volitional act and a but-for cause of the resulting performances, but, as in the case of the copy shop, that degree of involvement is not enough for direct liability.

In sum, Aereo does not âoeperformâ for the sole and simple reason that it does not make the choice of content. And because Aereo does not perform, it cannot be held directly liable for infringing the Networksâ(TM) public-performance right.

However, that's not the decision that the Court reached. Instead, J. Scalia describes the Court's opinion as:

The Courtâ(TM)s conclusion that Aereo performs boils down to the following syllogism: (1) Congress amended the Act to overrule our decisions holding that cable systems do not perform when they retransmit over-the-air broadcasts;4 (2) Aereo looks a lot like a cable system; therefore (3) Aereo performs. ...

Making matters worse, the Court provides no criteria for determining when its cable-TV-lookalike rule applies. Must a defendant offer access to live television to qualify? If similarity to cable-television service is the measure, then the answer must be yes. But consider the implications of that answer: Aereo would be free to do exactly what it is doing right now so long as it built mandatory time shifting into its âoewatchâ function. Aereo would not be providing live television if it made subscribers wait to tune in until after a showâ(TM)s live broadcast ended. A subscriber could watch the 7 p.m. airing of a 1-hour program any time after 8 p.m. Assuming the Court does not intend to adopt such a do-nothing rule (though it very well may), there must be some other means of identifying who is and is not subject to its guilt-by-resemblance regime.

Two other criteria come to mind. One would cover any automated service that captures and stores live television broadcasts at a userâ(TM)s direction. That canâ(TM)t be right, since it is exactly what remote storage digital video recorders (RSâ"DVRs) do, and the Court insists that its âoelimited holdingâ does not decide the fate of those devices. The other potential benchmark is the one offered by the Gov- ernment: The cable-TV-lookalike rule embraces any entity that âoeoperates an integrated system, substantially dependent on physical equipment that is used in common by [its] subscribers.â The Court sensibly avoids that approach because it would sweep in Internet service providers and a host of other entities that quite obviously do not perform.
That leaves as the criterion of cable-TV-resemblance nothing but thâ(TM)olâ(TM) totality-of-the-circumstances test (which is not a test at all but merely assertion of an intent to perform test-free, ad hoc, case-by-case evaluation). It will take years, perhaps decades, to determine which automated systems now in existence are governed by the traditional volitional-conduct test and which get the Aereo treatment. (And automated systems now in contemplation will have to take their chances.)

The Court's opinion states that it doesn't have an effect beyond Aereo and Aereo-like services:

Aereo and many of its supporting amici argue that to apply the Transmit Clause to Aereoâ(TM)s conduct will impose copyright liability on other technologies, including new technologies, that Congress could not possibly have wanted to reach. We agree that Congress, while intending the Transmit Clause to apply broadly to cable companies and their equivalents, did not intend to discourage or to control the emergence or use of different kinds of technologies. But we do not believe that our limited holding today will have that effect.

For one thing, the history of cable broadcast transmis- sions that led to the enactment of the Transmit Clause informs our conclusion that Aereo âoeperform[s],â but it does not determine whether different kinds of providers in different contexts also âoeperform.â For another, an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work. ...

And we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content.

But, as J. Scalia points out:

The Court vows that its ruling will not affect cloud-storage providers and cable- television systems, but it cannot deliver on that promise given the imprecision of its result-driven rule.

Well, I don't disagree with you with the latter part, but I think that we mostly lie to ourselves about the likely outcomes of our decisions in order to justify them, and the challenge is not doing that. But I suspect it's a learned behavior at least as much as an innate one. This is really about just integrating the lesson for me, not about blaming anyone else. I don't need to assign people a karmic balance or a sin level or whatever, so I don't need to blame your brother for alcoholism.

I did have my father to point to as an example of why alcoholism is bad, so that surely helped. But lots of people have that and then go on to be alcoholics.

Anyway, we keep a liquor cabinet and stack in piles of beer. Probably split a 22 of something fancy with my lady more days than not. But my serious drinking days ended with my twenties, and I've never had a blackout. On rare occasions (like, maybe three) I've said some pretty shitty things to people that sounded great in my head until right after they came out, and that was enough to scare me sensible. Not sober, just sensible :)

It's an inside job. The place I've seen it do the most damage is in education. Guess who keeps those administrators' salaries stratospheric?

I'm sure it is. But does he really want those claims to be tested in court? *gets popcorn*

Well, I like to think that the reason we can't have nice things isn't so much that we "let" them, but that they're employing force to keep us from stopping them. Every now and again I find myself agreeing with the libertarians, right up until it gets to the point of abandoning people- but I digress. (For example, did I tell you about the time...) It is all but illegal to be homeless, and in some cases and places, it basically is that. If you're working two jobs to support your family, how much energy do you have to expend finding a good one, especially when there's almost certainly at least two other people applying for each one to which you apply, and there are literally thousands for some? And if we should attempt to simply not play their little game, they tend to employ force to keep us at it.

Just being a "moron" is enough, or otherwise relegated to a crappy job. And more and more of the jobs out there are crappy ones. The ratio of full- to part-time jobs is declining, and real wages have decreased on average in this country for decades now, brief bubbles aside.

Average worker output has increased by orders of magnitude as average wages have decreased. Soon we'll have to work 100% of the time just to stay in debt, instead of 33-66% like it is now

P.S. Just kidding. We know there are three job-seekers to every position in the USA, and many of those are not even intended to be filled. We'll be in bright and early on Monday.

Perhaps then functions need to correspond to chords, operators to notes, etc etc

I don't know about "any trouble". What I've noticed about my family is that they are not strong on personal responsibility. Lots of excuses. I don't imagine that you get to use alcohol as an excuse. It might be an explanation, but it excuses nothing.

Video games prove that the hard part of even complex autopilot is actually getting the data into the autopilot. It's easy when the computer knows precisely where everything is, including the craft. Yay simulations!

Once that problem is better-solved, computers should be vastly better at flying, just like they're vastly better at keeping the tires on your car from losing traction than you are, whether we're talking about slowing down, speeding up, or making a turn. We can only reasonably operate about four controls at once! Maybe five at the outside. The computer can handle as many as you like.

I look forward to human drivers and pilots being obsolete.

This made me think, "it would be silly to use a drone _and_ a parachute, drones are VTOL." And then I thought, "So how do you not use the drone?" What about a parachute drone? On windless days... oh, wait. Never mind.

Well, the only part of that which seems reassuring to me is miniature, and that claim doesn't hold up. A drone which can carry (for example) more than about a can of soda is large enough to cause serious injury if it falls out of the sky and lands on you, or its software gets confused and it engages in controlled flight into your face. And then there's the fire risk if something bad should happen to a battery; sure, you could use LifePo or another safer-chemistry battery, but that doesn't rule out fires. If the drone should come down and set something inconvenient alight, assigning blame will be the least consideration.