[AnthonyMouse]

> By weighing the intentions of the company against the intentions of the law.

Putting aside how you're supposed to evaluate the intent of Congress or Aereo without evaluating exactly what it is they're doing, are you ready for the stupid consequences of that? It would mean someone doing the same thing with the same result would be legal if they had different intent. For example, someone could set up a service where customers can rent a VM in the cloud attached to a software radio[1] receiver that can receive any radio signals. Then "someone" (do you really care who when the outcome is the same?) publishes free software that allows you to use that to accomplish what Aereo does and more. The intent of the antenna provider no longer has any identifiable relationship to broadcast TV and yet people are still watching NBC without paying for cable. The same is true of the software provider, whose software has no reason to distinguish between a radio receiver in the cloud vs. in your home. Is that the result you were going for?

[1] http://en.wikipedia.org/wiki/Software_radio

[npizzolato]

Intent of involved parties is already a big part of the legal system and is a major (and sometimes necessary) aspect of many laws[1]. And in my opinion having intent matter is just common sense. It's why torrent clients are perfectly okay despite how easy it is to find torrents of copyrighted material, but Popcorn Time was probably going to have a challenging time in the courts[2].

[1] http://en.wikipedia.org/wiki/Mens_rea

[2] http://getpopcornti.me/

[AnthonyMouse]

The way an intent requirement is supposed to work is that there is some evil specified by the law that you are not supposed to do, and the prosecution or the plaintiff has to prove not only that you did it but that you intended to do it.

The problem with cases like this or Grokster is that it's the reverse of that. If you intended to get the same result as the prohibited thing then whatever it is you actually did is retroactively defined as the offense. It's thoughtcrime. You were thinking "bad thoughts" when you did something, therefore whatever it is you did is prohibited.

The consequences of that are all kinds of stupid. On the one hand it means that everybody has to hire lawyers and censor their employees to make sure nobody says anything that could retroactively cause their actions to be interpreted as unlawful by providing evidence of intent. It's completely pointless for BitTorrent to be OK while Popcorn Time isn't. Popcorn Time is essentially BitTorrent with a different logo. If you can't shut down BitTorrent then being able to shut down Popcorn Time will cause a zero percent reduction in piracy.

Meanwhile for all the language about not wanting to discourage innovation, how is that not the only possible result of this? You might as well post a sign that says "technological solutions to legal problems are prohibited." And technological solutions to legal problems are great, because legal problems are problems and technological solutions are solutions.

[vibrolax]

Right. The question asked is "Does the technology have substantial non-infringing use?". In the "Betamax case" [1] it was ruled that using VCR's for time shifting was fair use, even though a VCR could be used to illegally copy and distribute content. It had substantial non-infringing use. Bittorrent has substantial non-infringing use, so it is not illegal, though it also has illegal utility.

[1] http://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Univer....