errata for the post that went unexpectedly viralish

So I never expected that post about Mashable and the Supreme Court to be widely read. I wrote it very late at night (I think I made the last edits around 1 am?) after a very long day that began with me waking up at 4 am on a sidewalk in front of the Supreme Court. So 1) the writing isn’t that great and I really could have used a copy-editor; 2) I made some quasi-mistakes — really I think they’re just points that are unclear and could use some longer commentary:

Errata 1: Roku doesn’t get licenses?

As it turns out, it’s just sort of unclear. Someone pointed me to this article. I never claimed that Roku did not have contracts of some kind with services like Hulu and Netflix (note that those sites display Roku logos and offer easy ways to connect your account to your Roku!), but it seems to me that Roku does not need to get licenses for the “performances” — imagine for instance that Roku were just a box that connected to the web and then showed you the Netflix login screen. But who knows how the agreements between Roku and Netflix are actually worded? I don’t think they need to license the content itself, and they don’t need to license the “performance” right, and it would make me very cross to find out that they are doing it. But Roku’s lawyers don’t work to please random law student bloggers and they’d have good reason to  be overcautious in this fuzzy legal space.

Errata 2: HBO isn’t a distant signal

A reader pointed out that HBO still isn’t a distant signal under the definition I quoted. This is true. So either Scalia doesn’t know which services are retransmissions of distant signals, or if we want to be really charitable, he was glossing over to make a broader point about the spectrum of different kinds of television. It’s probably the former. But to be fair, I bet you didn’t know what a distant signal is, either.

My original point still stands: there’s no indication that Scalia thinks you get HBO for free, which is the meme that’s going around right now. It’s easy to hate on Scalia, but in this case, it’s not supported by what was actually said in oral arguments.

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