April 2014

Former CIA and NSA director Gen. Michael Hayden will write a bimonthly column called "Inside Intelligence" for the Washington Times.

“Gen Hayden is known as a broad-minded and independent thinker on military and intelligence matters. His columns will be must-reads inside and outside the Beltway,” Washington Times Editor John Solomon said. “We’re thrilled to have him as part of our growing team of columnists. His topics go to the heart of our mission as a newspaper.”

[Commentary] The Supreme Court pondered whether or not Aereo is engaged in the impermissible public performance of copyrighted material or whether it was doing, well something else.

And that seems to be the rub; the court seemed to struggle with exactly how to categorize what Aereo is doing. More specifically, the Justices tried to do what all lawyers do: find an analogy that helps them fit the facts of the present case into the factual bucket of a prior case.

There are two, strong potential prior case candidates: Sony Corp. v. Universal (Betamax) and Cartoon Network v. CSC Holdings (CableVision). In the Betamax case, the Supreme Court decided that Sony did not violate the copyright laws by selling a video recording device to an individual who used the device to record video transmissions or play back material that may or may not have been illegally copied. The CableVision case -- decided by the Second Circuit and therefore not binding on the justices – involved the use of a remote storage digital video recorder or RS-DVR.

The Second Circuit relied heavily on its own CableVision case in deciding in favor of Aereo, but both the Tenth and Ninth Circuits rejected similar arguments. So now it’s up to the Supreme Court to figure out what exactly is Aereo. Is it Betamax or is it CableVision?

Like all Supreme Court oral arguments there was something for everyone. There did seem to be emphasis on Aereo’s lack of payment of royalties at any point of the distribution -- a different business model than CableVision or Netflix. This might be the easiest way for the justices to distinguish Aereo from the Second Circuit’s CableVision case.

[Boliek is an associate professor of law at Pepperdine University School of Law]

[Commentary] In every modern society, the people who hold the levers of state power control the deployment of vast riches; every decision about a change in the tax code or the issuance of oil drilling licenses is worth billions to someone.

The potential beneficiaries of those policies have every incentive in the world to try to influence the decisions.

Influence peddling is the mechanism by which those hoping to sway politicians ultimately reward those politicians. Whether it is ethical or unethical, legal or illegal, depends on what particular compromises a given country has come to accept.

China has had a system in which the understanding is that legal authorities will take a don’t-ask-don’t-tell approach to family members of high political officials making vast sums. The prosecution of Zhou’s family is a frontal assault on that understanding of what is official corruption.

In the United States, the basic compact has been this: If you take financial benefits from a private interest that seeks to influence policy while in office, it is probably illegal. It’s the same if a close family member does it.

The influence games are different in Washington and Beijing, of course. And not all corruption is created equal; it matters whether a particular variety of official corruption drags down a country’s economy. At the worst extreme, a country where public officials at all levels demand constant bribes as a matter of course will not be a very hospitable environment for business.

But as the Columbia economist Ray Fisman has argued, so long as corruption is predictable and manageable, it can coexist with speedy economic growth (Indonesia under Suharto and China over the last few decades are prime examples). And China has greater state control over more of the economy, and little transparency around who is profiting from that control and why. That is a breeding ground for potential corruption on a scale unknown in the United States.

[Commentary] Depending on the outcome of the Aereo case, the battle could either solidify TV networks' grip over their content or throw the doors open to a future where consumers will be able to get traditional, over-the-air programming over the Internet instead.

Either way, the case promises to have huge implications for the way we watch TV. So here's a quick primer to get up to speed.

• What is Aereo? Based in New York City, Aereo uses tiny antennas to grab TV signals out of the air. Those antennas feed the broadcast programming to a DVR, which then plays the programming back to you on your PC, tablet or phone on demand. The technology is cloud-based, meaning it works a lot like Dropbox or Google Drive: The TV shows are stored online, then served to you over the Internet.
• Why is it so controversial? At issue is whether Aereo should have to pay money to TV broadcasters for their content. Right now, Aereo pays nothing -- it gets the TV signals for free just as you or I might with our own televisions. But unlike us, Aereo gets to make money off of relaying those transmissions over the Web. Broadcasters have challenged Aereo on that around the country, accusing it in court of stealing their work and infringing their copyright. They'd much prefer Aereo do what cable companies do, which is to pay "retransmission" fees for the right to carry broadcast content on cable.
• What's really at stake here? If Aereo is allowed to avoid paying retransmission fees, and more people start watching TV on Aereo instead of their cable subscriptions, that's money the broadcasters are losing out on.
• Suppose Aereo wins at the Supreme Court. Then what? Aereo would still need to prove that it's a viable business. With more and more people turning to Internet video, the commercial odds appear to be in its favor. That could change, however, if the broadcasters themselves start getting into Internet-enabled, or "over-the-top" TV.