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Suppose I could offer you a choice of two technologies for watching TV online. Behind Door Number One sits a free-to-watch service that uses off-the-shelf technology and that buffers just enough of each show to put the live stream on the Internet. Behind Door Number Two lies a subscription service that requires custom-designed hardware and makes dozens of copies of each show. Which sounds easier to build'and to use? More importantly, which is more likely to be legal?
If you went with Door Number One, then you are a sane person, untainted by the depravity of modern copyright law. But you are also wrong. The company behind Door Number One, iCraveTV
, was enjoined out of existence
a decade ago. The company behind Door Number Two, Aereo
, just survived its first round in court
and is still going strong.
The difference between them'and the reason for Aereo's willfully perverse design'originated in a critical 2008 DVR decision by the federal Second Circuit Court of Appeals in Cartoon Network v. CSC Holdings
(which everyone just calls "Cablevision"). The tech at issue in Cablevision was a "DVR in the cloud," and because of the way the Second Circuit answered the question of whether a DVR "performs" a copyrighted TV show when the user hits "play," the decision opened a whole range of possibilities for entrepreneurs willing to mash up technologies in ways God never intended.
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