The Aereo local TV case -- new patents and conflicting experts

I've been watching Aereo's effort to stream local TV online since they launched and were immediately sued. They've just won a legal round -- a temporary injunction against them was denied -- but the case may continue.

I'm rooting for Aereo because I want to see all local TV online one day.

I'm a cord cutter, but I'm happy to pay for selected video content. I subscribe to Netflix and Amazon Prime and just paid a one time charge to stream the Tour de France. Fortunately, I can watch local TV over the air with a rabbit ears antenna. All my local stations transmit from the same mountain top, Mount Wilson, so I don't even have to play around with the antenna.

If I lived a long way from Mount Wilson or was surrounded by tall buildings in a city like New York, I would be out of luck with my rabbit ears, but I would be willing to pay Aereo or anyone else a reasonable fee for local channels -- either all of them or ala carte.

The law suit against Aereo claims they are rebroadcasting copyrighted material. Aereo counters that they've developed technology enabling them to assign each user his or her own dime-sized antenna, either permanently or dynamically when they log in. It is as if the user had mounted their antenna at Aereo's location instead of on their own rooftop.

Yesterday, Judge Alison Nathan of the United States District Court in Manhattan denied a request for a temporary injunction stopping Aereo from offering their service.

Aereo won a battle, but not yet the war. Their case still hinges upon the claim that those dime-sized antennas are independent of each other and each is rented to a different user.

When I wrote about Aereo earlier, I expressed some skepticism about their technology. Take a look at your rabbit ears or rooftop antenna -- it's a lot bigger than a dime. That's because optimal antenna size is determined by signal wavelength, and the optimal length of a rabbit ears antenna would be roughly one to eight feet, depending on which channel you were watching. The antenna would also have to be oriented correctly for best reception.

I'm not qualified to say that a dime-sized TV antenna is not possible with enough design and signal processing smarts, but it would be quite an engineering feat.

I was also skeptical of Aereo PR. When Aereo was launched, they stated that CEO Chaitanya Kanojia held 12 patents, but a quick check showed that none were related to antenna design. When I asked Aereo about patents at the time, they would not comment.

What have we learned since then?

I am happy to say that Aereo has now filed for four patents:

• 20120127363 - Antenna system with individually addressable elements in dense array
  
• 20120127374 - System and method for providing network access to antenna feeds
  
• 20120129479 - Method and system for processing antenna feeds using separate processing pipelines
  
• 20120131621 - System and method for providing network access to individually recorded content

I skimmed over the applications and noted considerable overlap. For example, three of the four applications have identical abstracts and the fourth abstract only differs by the addition of four words. The diagram shown above is also included in each application. Still, they have filed patent applications, which hopefully disclose a successful design for a very small TV antenna. The court has also had roughly eleven weeks for expedited discovery and briefing on the preliminary injunction motion. The focus was on the antennas. As Judge Nathan states in her opinion:

The only significant factual dispute concerns the operation of Aereo's antennas. Aereo contends that each of its antennas functions separately to receive the incoming broadcast signals. Plaintiffs assert that Aereo's antennas function collectively as a single antenna, aided by a shared metallic substructure.

Each side presented expert testimony, and the experts disagreed. The plaintiff's expert was Dr. John Volakis. In her ruling the judge summarized Dr. Volakis' finding that

the antennas do not function independently. Instead, according to Dr. Volakis, the antennas are packed on the board so close together that the incoming signal "does not see the loops as separate elements, but rather as one continuous piece of metal," the function of which is further aided by a common metal substructure formed by the circuit boards and the metal rails.

It's no surprise that the defendents experts, Dr. Pozar and Dr. Horowitz, disagreed. The judge wrote that

Dr. Pozar and Dr. Horowitz maintain that the construction of the antenna system requires the antennas to function independently, and Dr. Horowitz has observed numerous (if small) differences in recordings of the same program created by two different antennas. ... Moreover, tests performed at the Aereo site demonstrate that the signal received by Aereo's antennas is 1,000 times stronger than that needed for reliable reception.

Is it an array of small antennas or one big antenna? The judge concluded the discussion of the antennas by stating:

Based on the evidence at this stage of the proceedings, the Court finds that Aereo's antennas function independently. That is to say, each antenna separately receives the incoming broadcast signal, rather than functioning collectively with the other antennas or with the assistance of the shared metal substructure.

That had to make Aereo fans smile, but it is only based on evidence "at this stage of the proceedings."

We will see whether the case continues and, if it does, how it turns out.

As I said at the start, I am pulling for Aereo or anyone else who can get local TV streamed online. Let's assume Aereo's technology claims are indeed true and they prevail in this case. What then?

As much as I hope Aereo wins, they have created a kludge to work around the copyright laws. It would be simpler for local stations to stream their content themselves, eliminating the need for Aereo.

What might Aereo do if the local stations were to do that? For a start they might give up their antennas and do the streaming for the local stations. Their patents cover transcoding and indexing content -- they could provide streaming service to local stations.

Furthermore, if those antennas can really pull in a signal 1,000 time stronger than that needed for reliable reception, I want one. In fact I want more than one. Again, it would be a lot less kludgy to just sell the antennas to end users who cannot get local stations with a rabbit ears antenna, but could with an Aereo antenna. If the antenna works well, it could take over the indoor antenna market.

If the technology works, Aereo can pivot and win even if they don't make it as a streaming company.