The UpStream

Fox Turns Supreme Court Win into Legal Hammer

posted Saturday Jun 28, 2014 by Scott Ertz

Fox Turns Supreme Court Win into Legal Hammer

Fox is pretty excited about their Supreme Court win over Aereo. They're so excited in fact that they've taken the ruling on the road, trying to apply it to their case against Dish Network.

Dish Network has a family of devices which they call The Hopper. In addition to automatically skipping commercials on the DVR, The Hopper also has Slingbox technology built into it. This technology gives users the ability to watch their recorded and live content remotely.

Fox has claimed that this ability violates Copyright law. Citing the Supreme Court ruling, Fox has filed new papers with the appeals court handling the case.

In Aereo, the Supreme Court held that Aereo's unauthorized retransmission of Fox's television programming over the Internet constitutes an unauthorized public performance of Fox's copyrighted works. Dish, which engages in virtually identical conduct when it streams Fox's programming to Dish subscribers over the Internet-albeit also in violation of an express contractual prohibition-has repeatedly raised the same defenses as Aereo which have now been rejected by the Supreme Court. Among other things, the Supreme Court rejected Aereo's argument... that it is merely an equipment provider and that Aereo's subscribers were the ones transmitting content over the Internet to themselves.

Dish Network and Sling believe that this is a different scenario. In the case of Aereo, there was no paid agreement for content. Aereo was picking up transmissions over-the-air and rebroadcasting them over the Internet without permission. In Dish Network's case, users are paying for a satellite television subscription which is first broadcast to the home.

Fox believes that this is tantamount to a public performance. Dish Network believes that this is private, personal use. Dish Network has responded to the court saying,

The first distinction lies in the Court's constant refrain that Aereo looks just like the cable companies Congress intended to cover with the Transmit Clause, which took signals off the air and retransmitted them to the public without authority or payment. Dish pays retransmission fees to Fox-Sling does not implicate pirating signals. Customers pay for the right to receive works, with Fox's authorization, and do receive them at home before sending them to themselves.

Despite the Supreme Court ruling against Aereo, I would guess that this case is not yet over. There are enough differences between the two that the judge can probably not cite case law. However, if the ruling is an indication of legal trend, it doesn't look good for Dish Network or The Hopper.

Alibaba to List Largest IPO Through NYSE, Not NASDAQ

posted Saturday Jun 28, 2014 by Scott Ertz

Alibaba to List Largest IPO Through NYSE, Not NASDAQ

Alibaba is not a name you've probably heard unless you're a big fan of Disney's Aladdin. That's about to change, though, as the Chinese tech giant is preparing for its IPO. And that IPO is going to take place on the New York Stock Exchange.

Through 2012 the NASDAQ was known for 19 years as the place for tech IPOs. Last year that changed as the New York Stock Exchange had more tech IPOs than the NASDAQ. While Facebook may have stuck with tradition, Twitter and social game maker King bucked that trend.

With Alibaba, however, something even more important is about to happen. The NYSE is about to be the host of the worlds largest IPO. Valued at almost $170 billion, the 12% of stock the company is expected to make public could raise them $20 billion. That would put them above both Facebook and Visa.

Obviously this is big news for the NYSE in a time when tech companies are once again looking for public funding. The exchange has also shown a lot more success in recent months then its competitor. Alibaba and the NYSE do have a bigger challenge ahead of them than some of the other recent tech IPOs. For example the company is not as well-known as the likes of Facebook and Twitter here in the West. In the East however they are THE brand. A little PayPal, a little Google and a lot of Amazon, the company traded nearly $300 Billion worth of merchandise in 2013. That is over two and a half times what Amazon did in the same time period.

If you're interested in stocks, this IPO, scheduled for August, could certainly be one to watch.

Iwata and Miyamoto Remain Onboard Nintendo Board

posted Saturday Jun 28, 2014 by Scott Ertz

Iwata and Miyamoto Remain Onboard Nintendo Board

It's no secret Nintendo is in some trouble. Their last fiscal year was the first time they ever lost money. The Wii U is their first home console to ever have sales trouble. They also just lost a patent suit over the Wiimote. With the trend like that you expect the company to make somebody pay for it.

That somebody will not be President Satoru Iwata. Nor will it be Senior Managing Director Shigeru Miyamoto. Both of these men, who are high profile for the company, were reelected to the board of directors.

The election comes after a couple of changes in direction for the company. First, sales of the Wii U have spiked, thanks in large part to Mario Kart 8. In addition, at this year's E3 presentation, Nintendo made a great showing with the number of surprises. For example, the inclusion of Miis into the next Super Smash Brothers game was incredibly well received. While not exactly the same as including Reggie Fils-Aime, it did shock and impress players.

It is possible that this change of sales and change of press helped retain the company's new direction, including their senior leadership. For me, both Iwata and Miyamoto are a big reason why the company has been successful in the past. If there are changes are helping to bring the company back to its roots, I think letting them finish the journey is a good decision.

If these changes are unable to sell more Wii U consoles at the launch of Super Smash Brothers, though, I might be writing a different type of article this time next year.

Supreme Court Protects Personal Privacy

posted Saturday Jun 28, 2014 by Scott Ertz

Supreme Court Protects Personal Privacy

This week was a big one for the Supreme Court and technology. In addition to stepping on streaming service Aereo, they tackled personal privacy concerns in the smartphone age. Before the ruling for whatever reason cell phones were not covered under the Fourth Amendment. This meant that police could search your phone without a warrant.

Obviously this created a variety of privacy and security issues. For example, if you filmed police brutality, the cops could take your phone and delete the evidence. This has happened a number of times and only enhanced an already dangerous situation.

The case in question involves something far more important though: personal privacy. Imagine being pulled over for speeding and the cop demands to see your phone. It is a similar request to searching your car on the suspicion of drugs. Previously, you had no legal expectation of privacy for that phone.

The only thing you could do was to have your phone PIN locked, as police cannot legally force you to divulge any information. This has created a sticky situation with the iPhone. If your phone is locked via finger scanner they CAN force you to touch your phone.

But, modern smartphones hold all of our personal information and the Constitution is written to protect our personal privacy from the government. Luckily, the Supreme Court unanimously agrees and cell phones are now protected under the Fourth Amendment.

A decade ago, officers might have occasionally stumbled across a highly personal item such as a diary, but today many more than 90 percent of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.

This means, before searching your phone, law enforcement is required to get a warrant, just like searching your home. This helps protect both the accused and bystanders who happen to film something happening with their phone.

How does this affect other devices though? Unfortunately, since tablets and wearables were not included in the suit, the Supreme Court could not rule on them. So, as for now, they are still searchable. This ruling however is a good start.

Supreme Court Says Aereo Business Illegal

posted Saturday Jun 28, 2014 by Nicholas DiMeo

Supreme Court Says Aereo Business Illegal

So, Aereo is dead. Yes, the innovative over-the-air video-streaming service that won us over with its edgy, boundary-pushing business model has been ruled illegal in the Supreme Court hearing this week. The decision, which was split 6-3 and overturned a lower court's decision, says that Aereo's business practices infringe on copyright law because the company acts almost identical to a cable company but Aereo hasn't been subjected to the same broadcaster fees as said cable companies.

This kind of affects the future of innovation in the TV and broadcasting spaces. Luckily, the Supreme Court maintained that only the current business practice for Aereo are illegal. The company could essentially negotiate rights with the broadcasters, but they probably won't considering both sides really haven't been seeing eye-to-eye.

Chief Justice John Roberts had this to say about the decision,

Your technological model is solely based on circumventing legal prohibitions that you don't want to comply with. There's no reason for you to have 10,000 dime-sized antennas except to get around the Copyright Act.

Technically speaking, he's right. However Aereo, even after shutting down on Saturday at 11:30 a.m. Eastern, maintains that it's not infringing on anyone's copyright laws by simply retransmitting over-the-air broadcasts. Customers are merely paying for the hardware required to do so, and not for the transmission itself.

How does this affect you? Well, if you were an Aereo subscriber, you're not any longer. The company issued refunds to every subscriber for the past month of service. The company is effectively shut down for right now as it evaluated what to do next. Aereo's CEO Chet Kanojia explained where Aereo stands right now.

On Wednesday, the United States Supreme Court reversed a lower Court decision in favor of Aereo, dealing a massive setback to consumers. As a result of that decision, our case has been returned to the lower Court. We have decided to pause our operations temporarily as we consult with the court and map out our next steps.

What if you're not an Aereo subscriber? If you're not akin to the greatness that was Aereo, you still should be looking intently into this decision. That's because while not much will change to those who simply watch cable or satellite TV, the decision could mean that the same over-the-air broadcasts that right now are free to the public could no longer be free in the future. Konojia continued in his blog post to say,

The spectrum that the broadcasters use to transmit over the air programming belongs to the American public and we believe you should have a right to access that live programming whether your antenna sits on the roof of your home, on top of your television or in the cloud.

To that end, he's actually right. Who's to say that certain broadcasters could decide to go after bars and pubs for even higher rates for their transmissions? Or even still, those same broadcasters could start charging license rights to TV antenna manufacturers for simply making a product that allows you to view the content. I know it seems like a stretch right now, but those scenarios are completely possible.

The slightly good news is that the decision only actually applied to live signals and not recorded ones. CEO of the CEA, Gary Shapiro said that, "there is wiggle room in the Aereo decision" and that the Courts "do not like what Aereo is doing" which is why they made the decision they did. Shapiro added that it's not the end of cord-cutting but cable companies are becoming "increasingly irrelevant" and beating up on Aereo isn't going to change that.

In the end, the copyright laws were never intended to foresee this type of innovation and Shapiro did go on to say that it's currently being looked at in Congress to try and remove these ambiguous laws so that the Aereos, Airbnbs and Ubers of the world can actually grow and thrive. The Supreme Court also said that it will convene over these type of copyright issues on a "case-by-case basis" so that maybe another company can come along and will have the support of the Court if they handle business in a slightly different way. Still, all of this kind of feels like we hit a brick wall as a nation and it's hard to see the light at the end of the tunnel. It seems like there is those who favor copyright and content protection against those who favor advances in technology. Can't there be a balance between the two?

"The world hates change, yet it is the only thing that has brought progress." - Charles Kettering, inventor, entrepreneur, innovator & philanthropist

Mario Kart 8 Might Have Just Saved the WiiU

posted Saturday Jun 28, 2014 by Nicholas DiMeo

Mario Kart 8 Might Have Just Saved the WiiU

Nintendo has not been doing well in this generation's console battle and has suffered huge financial losses as a result. Even last week the company lost a huge patent battle overseas that will likely have Nintendo further in the hole. Many people asked what Nintendo could do to bring itself back into better times and apparently the answer was Mario Kart.

Mario Kart 8, the game that cemented the Nintendo64 as one of the best consoles ever and the game that won our hearts as kids, sold over 2 million copies in less than a month for the WiiU. This essentially revived the Wii U as a console entirely as the latest Nintendo hardware has seen more use in the past month than in the past three months combined. What's key here is that this number represents the total amount of units actually sold through to the customer.

In the shareholder meetings, Nintendo went on to announce that Mario Kart 8 sold 1.2 million copies in the first week alone and even helped console sales because of its popularity. Nintendo America's President Reggie Fils-Aime said that Wii U sales have quadrupled during the first week of Mario Kart 8's release. We currently sit at 6.17 million WiiUs sold, but that figure is from exactly two months before the Mario-driven battle franchise hit shelves on May 30th.

Nintendo exec Scott Moffitt even said that the sales have been so monumental that it almost feels like the Nintendo 3DS revival, except Nintendo isn't slashing prices with this one. To give you some contrast, it took Super Mario 3d World a little over four months to reach 2 million sold worldwide and Nintendo's top seller on the Wii U, New Super Mario Bros. U sold just a bit over 4 million as of April 1st.

Could this be the game that finally brings Nintendo back to its glory days? I know the game makes me want to go pick up a Wii U myself, but how about you? Let us know in the comments section below.

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