i didnt miss your point. i know full well what you are stating, but the case is different than the cablevision case. Aereos service has to do with transmitting live broadcasts, whereas the cablevision case has to do with transmitting DVR'd content. transmitting LIVE broadcasts is deemed by the courts to be operating as a cable provider,and they cite an earlier case as precedent. Is there any other case where this is shot down? The cablevision case doesn't apply here.
Im also quoting Scalia
You need to read Scalia's full dissent, not pick and chose what you want to quote from him.
What Scalia is saying there has nothing to do with my argument. Scalia is merely stating that Aereo could get around the majority's opinion by doing that, based on how the opinion was written. Meaning that the DVR function is safe under the law, but even that's not the point here.
As a side note though, by that same token pirating TV shows from those networks would be completely legal then. Except that crosses from private performance to public performance. Aereo would still be required to pay a licensing fee for those properties and become a Hulu competitor.
You are failing to address the key issue, what was actually argued and ruled on: public versus private performances. As I stated before, "Under the dissent’s framework, a bright-line rule would exist: the party that 'chooses the content' is the direct infringer. In a conclusion reminiscent of the holdings in the congressionally overturned CATV cases, the dissent concluded that Aereo did not choose the content and therefore did not 'perform.'"
Cablevision applies to the DVR-side. The live TV side SHOULD be protected by the free OTA laws. Again, as I've explained before, I view this as no different than me having an antenna and watching or recording what I want. In Aereo's case, the antenna is remote from where I am, but I am still in control of it, which is exactly what Scalia stated.
 From TechCrunch (a terrific read):
Just like cable, Aereo lets you tune to your favorite show, watch it live, and record it to a DVR service. The process by which it achieves this is very different from the way that cable companies do it, however.
While cable companies are forced to pay for free content and then charge you for that free content, Aereo developed a way to let users rent a remote antenna, as well as subscribe to a cloud locker service to achieve the same effect. Both the antenna, and the DVR service are very legal.
But when combined, Aereo takes on the appearance of a cable company.
It looks like a duck and quacks like a duck, but it’s not a duck. Unfortunately, the Supreme Court was very focused on Aereo’s aviary appearance.
Within the opinion, the court even admits that Aereo’s method and technology for delivering content is very different from the cable companies. It also states that this difference (based around user involvement in the process of transmission) could be the saving grace for other technology providers, but not for Aereo.
This Court recognizes one particular difference between Aereo’s system and the cable systems at issue […]. The systems in those cases transmitted constantly, whereas Aereo’s system remains inert until a subscriber indicates that she wants to watch a program. In other cases involving different kinds of service or technology providers, a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act. But given Aereo’s overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here
It just looks too damn much like a duck.
This goes to the heart of my point. SCOTUS was too focused on what Aereo looked like and not what it actually was. They ignored the key factors that make up what Aereo actually is. And that is a completely legal service under the law. They got it wrong.
From the dissent:
The Networks sued Aereo for several forms of copyright infringement, but we are here concerned with a single claim: that Aereo violates the Networks’ “exclusive righ[t]” to “perform” their programs “publicly.” 17 U. S. C. §106(4). That claim fails at the very outset because Aereo does not “perform” at all. The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come.
Edited by Hurmoth, 29 June 2014 - 00:50.