This is actually the main business model that Aereo threatens... not because Aereo is all that threatening to re-transmission fees, but that if they are successful, then all cable companies could just use multiple antennas to capture the over-the-air signal and avoid paying the (large) retransmission fees.

(Then you get into cable companies owning networks that own broadcasters, and you see that it's all a big mess)

Aereo basically let's you lease a colocated TV antenna, and streams the content from that antenna to you over the Internet. It's one-to-one, antenna-to-subscriber. This is the core of the business, and the most threatening to broadcasters. But it's also the part where it's really hard for me to imagine how a legal opinion against Aereo could be crafted, without abridging the principles of public access to broadcast TV.

Aereo also leases you DVR services. And I understand that this is where the Cablevision precedent comes into play. But even if that precedent were overturned, it seems to me that it would still be possible for the most disruptive aspects of the service to live on. People would perhaps just be required to host their own DVRs.

(Disclosure: my girlfriend does works for a company that works for Aereo)

I agree, but it makes me think of when people say, "Well, you can't copyright an integer. And if I convert a DVD to a series of bits, and that series of bits expresses a very large integer, then I'm free to share that uncopyrightable number."

It's clever, and arguably true, but it just doesn't fly in real life. The color of bits bites you in the ass, and I sort of expect that to happen with Aereo as well.

Yeah, each part makes sense, but taken as a whole some judge is likely to think, "If it walks like a duck ..."

What's worse is if a judgement comes down against Aereo that, perhaps inadvertently, opens the door for abuse precisely because it ends up abridging the principles of public access to broadcast TV.

How about hex http://daniel.haxx.se/hexpoetry/ http://daniel.haxx.se/hexpoetry/goodies.html

What matters is a certain level of creativity and art. 'as an integer' is no more meaningful than 'as postscript' or 'in times new roman'. It's about the underlying work.

Has this ever been tested in court?

Definitely. Note though, that this was exactly the concern when cable came out, and got its start by delivering over the air broadcasts from faraway metropolises to subscribers in rural areas or other cities.

For anyone interested in the history of telecommunications, definitely check out Tim Wu's "The Master Switch. There's a section on how new cable companies fought against entrenched broadcasters back when the power dynamic was a little different, really shows how often this same battle repeats itself with different players every time.

The question is, given that it is legal for me to record a show broadcast over the public airwaves, is it also legal for me to pay a company to do that for me.