Exhibit 1 - Harvard Universitycbavitz/Aereo Horowitz Expert Report.pdf · Expert Report of Paul...

Exhibit 1

Case 1:12-cv-01543-AJN Document 97-1 Filed 05/29/12 Page 1 of 48

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

AMERICAN BROADCASTING COMPANIES, INC., DISNEY ENTERPRISES, INC., CBS BROADCASTING INC., CBS STUDIOS INC., NBCUNIVERSAL MEDIA, LLC, NBC STUDIOS, LLC, UNIVERSAL NETWORK TELEVISION, LLC, TELEMUNDO NETWORK GROUP LLC, and WNJU-TV BROADCASTING LLC,

Plaintiffs/Counterclaim Defendants,

Civil Action No. 12-CV-1540 (AJN)

v.

AEREO, INC.

Defendant/Counterclaim Plaintiff.

WNET, THIRTEEN, FOX TELEVISION STATIONS, INC., TWENTIETH CENTURY FOX FILM CORPORATION, WPIX, INC., UNIVISION TELEVISION GROUP, INC., THE UNIVISION NETWORK LIMITED PARTNERSHIP, and PUBLIC BROADCASTING SERVICE,

Plaintiffs/Counterclaim Defendants,

Civil Action No. 12-CV-1543 (AJN)

v.

AEREO, INC., f/k/a BAMBOOM LABS, INC.,

Defendant/Counterclaim Plaintiff.

EXPERT REPORT OF PAUL HOROWITZ


Expert Report of Paul Horowitz

on the Operation and Technology of Aereo Television

I. Scope of This Report

1. I have been asked by attorneys for Aereo to set down in this report adescription of the operation of Aereo system, both from the user’s point of view, andfrom the technical point of view of what happens “under the hood.” I have beenasked, also, to compare its operation to that of Cablevision’s RS-DVR (Remote-Storage Digital Video Recorder). Further, I have been asked to include tutorialmaterial helpful in understanding the technical aspects involved.

2. In the following sections I have prefaced these topics with background in-formation, in the form of a tutorial on television (audio and video), starting withthe capture of the moving image and sound, its conversion to electronic signals, andtheir subsequent storage, transmission, and reproduction. The discussion includesthe traditional “analog” methods of video and audio, and the “digital” methods thatdominate the technology of contemporary audio, video, and television.

3. If asked at hearings or trial, I am prepared to explain in detail, with ap-propriate visual aids, background information on television systems, including audioand video formats (both digital and analog); compression, modulation, transmission,demodulation, and display; storage/retrieval technologies; and details and compar-ison of the Aereo and RS-DVR systems. These may include, among other things,background information on electronic circuits, components, and systems in general,and audio/video technologies in particular. I am also prepared to testify on mattersraised in cross-examination; to rebut, as necessary, matters raised (in reports, depo-sitions, and/or court testimony) by plaintiff’s experts; and to address other relatedmatters raised at trial.

4. The following sections of this report are organized as follows:

II. Professional BackgroundIII. Television: A Tutorial

Television: Video Plus AudioThe AudioThe Video

Combining and Sending The Audio + Video: ModulationRecording Analog-Format Broadcast or Cable TelevisionDigital Television: What Is It?Digital Television: Broadcast and Cable DeliveryDigital Video Streaming over InternetRecording Digital Television

IV. The Aereo System

1Redacted Public Filing


OverviewTechnical DetailsComparison with Cablevision RS-DVRComparison with Off-the-Air DVR

V. Response to Plaintiffs’ Expert Reports

and I have numbered the paragraphs for ease of reference.



II. Professional Background

5. I am a Professor of Physics and of Electrical Engineering at Harvard Uni-versity, where I teach courses in Physics and in Electronics, and where I performand supervise experimental research. Additional career details can be found in theCurriculum Vitae attached as Exhibit A.

6. My expertise in the field of electronics, computers, and communicationsincludes some 50 years of electronic circuit design and implementation. In 1974 Ioriginated an Electronics course at Harvard University, Physics 123, which continuesto this day, and which is taught in the regular semester (in four classes, to accom-modate the demand) as well as in Harvard’s Extension school and Summer school.Included in the course lectures are discussions of video (both analog and digital);transmission of signals by antennas, cable, and fiber optics; and the techniques ofmodulation, demodulation, and signal compression, to convey and store audio andvideo content.

7. A set of notes written originally for this course in 1974 was expanded (withco-author Winfield Hill) and published as The Art of Electronics by Cambridge Uni-versity Press in 1980. That edition went through some 20 printings, adoptions byseveral technical book clubs, and translations into several languages, and it (and thecompanion Laboratory Manual co-authored with Ian Robinson) formed the basis fornumerous copies of our electronics course; the textbook received much critical praise,and is generally accepted as an authoritative reference on electronic circuit design.1

In 1989 an expanded second edition was published, again with co-author Hill, thistime with an expanded Student Manual (with co-author Thomas Hayes). Transla-tions of this edition have been published in German, French, Dutch, Chinese, Russian,Indonesian, and Polish, with additional foreign editions licensed or in progress. Thistext/reference covers electronics circuit design and operation broadly. It includes dis-cussions of relevant topics, such as radiofrequency communications; transmission lines;modulation and demodulation; digital conversion, processing, storage, and transmis-sion; and memory buffers. A greatly expanded third edition is in production.

8. In addition to teaching the Electronics course, I supervise graduate studentswhose work includes design and construction of electronic instrumentation. In thatrole, in addition to acting as informal consultant to other research groups at theUniversity, I have designed numerous electronic circuits and instruments.

9. I also am the originator and co-supervisor of the Electronic InstrumentDesign Laboratory at Harvard University, run jointly by the department of Physicsand the Division of Engineering and Applied Sciences. This laboratory providescircuit and instrument design, construction, and development services to researchgroups within the university.

1It has the distinction of being one of the three circuit design texts included in IEEE Spectrum’s“Treasured Textbooks (1940–1980)” (Spectrum, 40, 7 (2003)).



10. Outside of my university duties I have designed electronic products forseveral commercial ventures. I have also led technical studies, and co-authored reportsfor various government entities as a member (since 1983) of a technical consultinggroup of academic scientists and technologists; these often involve issues of electronicsin communications and instrumentation. In that role I have led some 20 technicalstudies, and coauthored over a hundred technical reports.

11. In my career I have designed and built literally hundreds of electronic cir-cuits, broadly spanning the range from analog to digital, audio to radiofrequency,discrete to integrated to microprocessor. Over the years I have designed with vac-uum tubes, transistors, and integrated circuits (from the earliest RTL logic to thesophisticated CMOS microprocessors and microcontrollers of today), for applicationsranging from low-level signals, digital processing and computers, audio/video andcommunications, imaging, motion control, and mixed-signal.

12. During 1997 I testified by deposition and at trial in the case of Securityand Access v. Motorola, Inc.,2 tried in the U.S. District Court for the District ofDelaware. Beginning in July 1999 I served as an expert witness3 in several casesinvolving patents held by Vicor Corporation, in particular Vicor v. Unitrode, Vicorv. Lucent, Vicor v. Power-One, Vicor v. Artesyn, and Vicor v. Lambda. These weretried in the U.S. District Court for the District of Massachusetts; my participationtook the form of Expert Reports and Rebuttals, Declarations, depositions, and tes-timony at hearings and trial. Beginning in September 2002 I served as an expertwitness in the case of Chrimar Systems, Inc. v. Cisco Systems, Inc.,4 tried in theU.S. District Court for the Eastern District of Michigan, where my participation tookthe form of Expert Reports and Rebuttals, Declarations, and depositions. Beginningin September 2003 I served as an expert witness in the case of Lectrolarm v. Viconet al.,5 tried in the U.S. District Court for the Western District of Tennessee, wheremy participation took the form of Expert Reports, depositions, and testimony athearings. Beginning in April 2005 I served as an expert witness in the case of PowerIntegrations, Inc. v. Fairchild Semiconductor International, Inc., and Fairchild Semi-conductor Corporation6, tried in the U.S. District Court for the District of Delaware,where my participation took the form of Expert Reports, Rebuttals, depositions,and testimony at trial. Beginning in October 2005 I served as an expert witness inthe case of Black & Decker, Inc. v. Robert Bosch Tool Corporation7, tried in theU.S. District Court for the Northern District of Illinois, Eastern Division, where myparticipation took the form of Expert Reports, depositions, and testimony at trial.Beginning in 2006 I served as an expert witness in Twentieth Century Fox Film Cor-

2on behalf of Motorola.3on behalf of Vicor.4on behalf of Cisco.5on behalf of Bosch Security Systems, GE Interlogix, Matsushita Electric, Sensormatic Electron-

ics, Sony Electronics, and Vicon Industries.6on behalf of Fairchild7on behalf of Bosch



poration et al. v. Cablevision Systems Corporation et al.,8 tried in the U.S. DistrictCourt for the Southern District of New York, where my participation took the formof Expert Reports, depositions, and testimony at trial. Beginning in April 2009 Iserved as an expert witness in United States of America v. Wu et al.,9 tried in theU.S. District Court for the District of Massachusetts, where my participation took theform of trial testimony and declarations. These cases involve telephone and cellularhandset security, electronic power conversion technologies, computer network securityand powering, remote surveillance camera technology, worksite radios, remote storagedigital video, and electronic component technologies, respectively.

13. Additional consulting during the last decade includes Bell, Boyd & Lloyd(on behalf of Bosch Security Systems), Bristows (on behalf of Ericsson), Cesari &Mckenna (on behalf of Gerald Pellegrini), Fish and Richardson (on behalf of EatonPower Quality) and the Mitre Corporation (an FFRDC, on behalf of various agen-cies of the U.S. government). My employer has been, and continues to be, HarvardUniversity.

8on behalf of Cablevision.9on behalf of Wu et al.



III. Television: A Tutorial

14. This tutorial section of the report provides background information onthe basic technologies of television: the video (picture), audio (sound), modulation(transport), recording, and methods of contemporary digital television.

Television: Video Plus Audio

15. Television involves the remote delivery of a moving picture, plus sound. Itis accurate to think of the sound as continuous; however the picture is captured, andthen delivered, as a succession of still images, at a rate fast enough that the viewerperceives a scene of continuous motion.10

16. Television is distinguished further, of course, by the transmission of thismovie-like content to the remote viewer. Originally this was carried out exclusivelyby terrestrial transmission, via radio waves, to the viewer’s antenna and television set.Over time other methods of transmission have been added – electrical cable,11 opticalfiber, direct satellite transmission via microwaves – along with recording methodssuch as magnetic videotape (Betamax, VHS, D-VHS), and optical discs (Laserdisc,VideoCD, DVD,12 HD-DVD, Blu-Ray, and others).

The Audio

17. The audio portion of television is perhaps more easily understood, as itdiffers little from ordinary sound recording techniques. A microphone converts theinstantaneous sound pressure variations into an electrical signal; that is, it createsas its output an electrical voltage that at each moment is proportional to the pres-sure of the sound wave to which it is exposed. Contemporary audio recording anddelivery usually employs two or more microphones, creating “stereo” sound (i.e., twochannels), or multi-channel sound (e.g., “5.1 channel sound”).

18. Traditionally these signals were processed, stored, and delivered by “ana-log” methods, which means simply that the signals were treated as smoothly varyingvoltages as they passed through the electronic innards of the amplifiers, recorders,modulators, and so on.13 Contemporary “digital” technology does it differently: al-most as soon as possible, the microphone’s signal (the varying voltage that representsthe sound) is converted to a succession of numbers (it is digitized), and everythingthat follows is some form of arithmetic on this torrent of numbers that comes tum-bling out. Only at the final stage – recreating the recorded sound for the listener –

10For conventional cinema-style movies, the rate is 24 frames/second; television in the U.S. usesa rate of approximately 30 frames/second.

11Known technically as coaxial transmission line.12“Digital Versatile Disc.”13Common analog recording technologies, now nearly obsolete, include the vinyl record (where the

audio signal waveform is embossed as small displacements of a fine groove), and the audio cassettetape (where the audio signal waveform is recorded as patterns of magnetization on a thin layer ofmagnetic oxide coating on a flexible plastic tape).



is the digital representation converted back to an analog voltage, and then, in theloudspeaker, to a reproduction of the original sound pressure wave.

19. Just to give a sense of the quantity of numbers involved, in the standardizedrecording technology of the compact disc (CD), the instantaneous sound is sampledat a rate of 44,100 times per second (in both stereo channels simultaneously), andeach such sample pair is converted (“digitized”) to a 16-bit binary number.14 So, thebits are tumbling out at a rate of 2×44,100×16=1,411,200 bits per second, or nearly100 million bits per minute.15

20. One might ask why any sane person would want to deal with such a quantityof numbers, when the original analog representation of the sound was so much simpler– just a pair of voltages that were varying at most 20,000 times per second.16 Thereasons are several, but they boil down to the contemporary ease and economy ofdigital processing, combined with the higher efficiency and quality of storage andtransmission of audio (and video) that has been properly digitized. To get a senseof those advantages, one need only marvel at the gorgeous images transmitted dailyfrom planetary probes visiting Mars and Jupiter – images that are free of “snow” andother artifacts irreparably added to analog transmission by the effects of unavoidableelectrical interference — to appreciate the benefits of error-free digital transmission.And, to get a sense of the density of digital storage, we note that a contemporary 5′′

optical disc (dual-layer BD) holds 80 hours of CD-quality audio, or ten times thatamount if modestly “compressed,” compared with a mere hour’s storage of analogaudio on the 12′′ vinyl LPs of yesteryear.17

The Video

21. The video is by far the more complicated part of television. The challengeis to reproduce a scene with motion, in color, while preserving adequate fidelity andintroducing a minimum of artifacts. And, this must be done within the resources ofthe storage and delivery channels – that is, with finite disc storage and speed, and withfinite transmission (via broadcast tower, cable, satellite, or Internet) bandwidth.18

22. Video systems begin with a camera that has an electronic sensor (anal-

14That is, a number ranging from -32768 to +32767, those bracketing the “full-scale” range of therecorded sound.

15The recorded bitrate is roughly triple this figure, because of coding, error-correction redundancy,and the like.

16Or 20 kilohertz, the upper limit of human hearing; and that only for one of relative youth, suchyouth further possessed of sufficient wisdom to avoid deafening rock concerts.

17And a contemporary 2 terabyte 3′′ magnetic hard drive that you can hold in your hand holds yetanother factor of 40, or 30,000 hours of excellent quality (128kbps AAC) compressed stereo audio;that’s 15 years of 40-hour per week music!

18Bandwidth refers to the range of frequencies that can be carried on the cable or other transmissionmedium. It is technically accurate to think of this, for example, as the range of stations on the radiodial that could be carried with fidelity by a single electrical cable (or other medium). The term issometimes used loosely to refer to rate of data transfer.



ogous to a digital camera), and which converts the two-dimensional color scene onthat sensor into a succession of frames, each of which represents the image at thosesuccessive times (for U.S. TV, the rate is approximately 30 frames per second). Intraditional analog television, the two-dimensional image is converted into an electricalsignal by the following method: Imagine a single frame, that is, a still picture. Tokeep it simple, imagine further that it is monochrome, that is, “black and white.”19

We begin at the upper left, and move horizontally across the picture, generating anelectrical voltage proportional to the brightness at each point as we pass by. When wereach the righthand border, we jump back to the left edge, continuing with anotherhorizontal path, slightly below the first. See Figure 1. We continue in this way untilwe reach the bottom right corner, at which time we have scanned the entire frameonce, in what is known as a raster pattern.20

Figure 1: A static 2-dimensional image is “raster-scanned” to create avideo waveform (Fig. 2) representing intensity along the scan lines.

23. What we have done, then, is to generate an electrical representation, intime (a varying voltage proportional to brightness at each point in the image) of asingle two-dimensional image; that is, we’ve converted a two-dimensional image intoa one-dimensional output voltage. See Figure 2.

24. This time-varying voltage is called the video signal, and it is the first stepin creating a television image. In traditional NTSC analog television, this signalwas transmitted by analog methods, after a process called modulation (more below),and was recovered and used by the television set to paint the picture on the screen,performing the same raster scan (left to right, top to bottom). Each frame followsin sequence, presenting a succession of 30 pictures per second on the television set’s

19Or, more accurately, grayscale.20Traditional standard definition television (SDTV, usually called “NTSC,” for National Television

System Committee, and going back to the 1940’s) in the United States divides the whole pictureinto 480 horizontal lines, along each of which roughly 640 features (picture elements, or pixels) couldbe resolved; a computer user would not be terribly impressed – he or she would say that standardNTSC television has only “VGA” resolution (i.e., 640×480).



Figure 2: A portion of the video waveform from Figure 1, representingone of the 240 horizonal scan lines.

viewing screen.21

color

monochrome

(“blackand white”)

1 horizontal line (63.5 μs)

colorburst

synctip

black

white

Figure 3: Composite analog video signal of one horizontal line, framed byhorizontal sync pulses. The brightness (“luminance”) is represented byits amplitude. Color is accommodated by adding a modulated 3.58MHz“chrominance” subcarrier, whose amplitude represents degree of satura-tion and whose phase encodes the colors.

25. To complete the video signal, it is necessary to add some synchronizinginformation, so the television set knows when to begin painting a frame, and alsowhen each horizontal line begins. In traditional NTSC television this is done byadding a horizontal sync pulse at the beginning of each horizontal line, which is justa short22 voltage pulse that, if it were in the middle of a picture, would be interpretedas “blacker than black.” The television set detects these pulses, and uses them to

21To complicate things, NTSC uses a method known as interlacing, in which a coarser raster –omitting every other horizontal line – is performed at twice the rate. Thus, in standard NTSC U.S.television, the viewer sees 60 pictures (“fields”) per second, each of which has only 240 horizontallines; two such fields, with their interlaced lines, form one complete 480-line frame. This is sometimescalled a “480i” format, to distinguish it from formats with higher resolution (e.g., HDTV, with 720lines or 1080 lines), or from those without interlacing (which are known as progressive; e.g., 720p).

22About 4.5 millionths of a second.



synchronize its scanning across each line. Likewise, once each field there is transmitteda unique vertical sync pulse, which informs the television set when to return to thetop to begin painting the next field/frame. The complete video picture signal, withits added sync pulses, is called composite video.

last few lines (bottom of screen) vertical retracebeginning of

end ofvertical retrace

first few lines(top of screen)

Figure 4: The vertical retrace (beginning of a new field) is signaled by aset of tailored sync pulses, the first and last of which are shown here.

Combining and Sending The Audio + Video: Modulation

26. Continuing for the moment with traditional NTSC television (as opposedto digital television, whose standards are known as ATSC, set by the Advanced Tele-vision Systems Committee, and which will be explained later), the composite video,along with the audio, must now be sent, via transmitting tower or cable, to the homeviewer. Naively one might think of simply transmitting these signals “as is.” Thisis not done, however, for at least two reasons: First, if the composite video signalswere transmitted directly, then any two television signals would overlap and jam eachother (because they would all share the same frequency band, namely that of the rawvideo signal itself); secondly, some wavelengths are more conveniently generated andpropagated than others. For these reasons, the audio and video content of televisionsignals (and, indeed, all communications and broadcast signals) are instead used tovary some aspect of a “carrier” wave, chosen at some specified wavelength. Thatcarrier wavelength (or, equivalently, frequency) defines the “channel”; and the pro-cess of impressing the information (video/audio) onto the carrier wave is known asmodulation.

27. Radio stations use the same technique: AM stations vary the strength(amplitude) of the carrier (hence “amplitude modulation”), whereas FM stationsvary the frequency (“frequency modulation”). The carrier frequency itself defines thechannel: in the U.S., AM stations are assigned to carrier frequencies between 520 and1710 kilohertz (kHz, thousands of cycles per second), while FM is assigned to theband of carriers from 88 to 108 megahertz (MHz, millions of cycles per second). Inthe U.S., broadcast television begins at 54MHz (Channel 2), and ends at 698MHz



(channel 51), with gaps for FM, aeronautical, and other services.23

28. When information (video, for example) is modulated upon a carrier, theresultant signal spreads out, and occupies a small band of frequencies. For example,when an FM station varies the frequency of its assigned carrier, to carry its audiosignal, the resulting signal occupies about 150 kHz. So, FM stations are assignedchannels separated by 200 kHz (to allow a “guard band” of 50 kHz in addition totheir 150 kHz signal) – and that is why the frequencies of FM stations always end inan odd number after the decimal point (for example WNYC is 93.9MHz), ensuringa minimum spacing of 0.2MHz (=200kHz).

29. Traditional analog NTSC broadcast television used a variant of AM forthe picture signal (composite video), and, separately, FM for the sound signal.24 Theassigned TV channels are spaced apart by 6MHz, each station being permitted tooccupy nearly that amount, after allowing for a small guard band. Television sets“know” the frequencies allocated for each channel, and tune to the correct frequencywhen the user chooses the channel number. For example, if (during television’s analogera) one tuned to Channel 13 in the New York City area, the television set’s electronicsselected the station transmitting on 210MHz (assigned by the FCC as Channel 13),namely WNET. The electronics in the set demodulates the received signal, recoveringcomposite video and audio. The video, with its embedded sync signals, is used topaint the picture, frame after frame, while the audio is sent to the loudspeakers.25

30. Broadcast television (and radio) takes place on what is often called the“public airwaves.” One needs only a television set (or radio) and an antenna to re-ceive these over-the-air (OTA) public transmissions. Although some countries requirelicensing of receiving devices (radios and television sets), in the U.S. the broadcastservices are freely available to anyone within range of a transmitting tower.

31. Depending on the distance and path from the broadcast station to theviewer, the home television antenna has traditionally been as simple as an indoor“bowtie” or pair of “rabbit ears,” or as elaborate as a roof-mounted multi-elementstructure. Whatever its form, the antenna’s function is to create an electrical signal onthe feedline, induced by the speed-of-light broadcast signal passing by the antenna’ssite. That signal is connected via a transmission line to the TV tuner, which amplifies,selects, and processes the channel to be viewed.

32. Cable television sends traditional analog TV channel signals in almostexactly the same way as broadcast. An evident difference, however, is that the chan-nelized signals are received at the viewer’s end from a coaxial cable (rather than beingreceived by the viewer’s television antenna), and then connected to the television set

23You can download a gorgeous multicolor wall-sized spectrum allocation figure fromwww.ntia.gov/osmhome/allochrt.pdf.

24That is, the picture and sound signals are carried simultaneously on a pair of designated carrierfrequencies within the single assigned television channel.

25In this primer we have ignored details associated with reproduction of color (vs black & white).



directly (i.e., to its normal antenna connector on the rear). Alternatively, for ad-ditional cable services (such as premium channels) the incoming cable connects toa “set-top box” provided by the cable company, the output of which is connectedto the viewer’s television set (or flat screen monitor, projector, etc.).26 The channelfrequencies are also somewhat different, with Channels 2–13 chosen the same as forterrestrial broadcast, but with the remaining channels reassigned to eliminate gaps.

33. A third difference is that some of the cable content is delivered as a sub-scription, for which the viewer pays additional fees; examples are premium servicessuch as HBO. These require some method for permitting or denying viewable deliv-ery of selected channels or programs. Continuing for the moment with analog cable(whose days are numbered!), this can be done in several ways: the simplest is byinstalling filters (to block unsubscribed channel frequencies) at the utility pole, wherethe subscriber’s cable splits off from the trunk running along the street;27 A more so-phisticated method involves scrambling the cable-borne analog signals of subscriptionprograms,28 and then instructing the set-top box (via digital communication from thecable provider to the individual STB) as to which programs may be unscrambled.

34. It is worth noting that cable companies have been required to carry thebroadcast stations in their area, normally as analog cable channels.29 Each such pro-gram occupies a cable channel (frequency). However, they may distribute additionalservices via digital methods (“digital cable”), on additional channels (frequencies),which they much prefer: that is because, with digital methods, it is possible to carryup to ten NTSC-quality programs (i.e., SDTV, for “Standard-Definition TV”) on asingle channel. This is called multicast : the ability to carry multiple programs on asingle channel (i.e., frequency). And, note that a cable can carry more than 100 suchcarriers — permitting more than 1000 simultaneous programs.

35. Previewing some additional characteristic of digital television: digital cablepermits flexible subscriptions, with a program being authorized on-the-fly (e.g., pay-per-view, or video-on-demand). It allows for interactive participation, via a reversechannel back to the cable provider. It permits the delivery of high-definition content,with more than the 480 lines of NTSC (up to 1080 lines, at the highest qualitycurrently supported). Finally, it provides a natural way to time-shift, pause, orreplay live programs, via computer-type hard disk storage.

36. Analog broadcast was sent into retirement in the United States in June of

26For better picture quality, the latter connection is usually made not to the set’s antenna input(called “RF,” for RadioFrequency, meaning the modulated channels discussed above, in ¶¶26–29),but to special audio/video inputs, with names like s-video, component video, composite video, DVI,or HDMI. The latter pair are digital connections, discussed below in connection with digital TV.

27Vintage cable subscribers will remember calling the cable company to add a movie channel,whereupon a cable truck appeared, the cable guy went up the pole to fiddle with something (changingthe filter), and, voila, movies on your television!

28For example, by suppressing the horizontal sync pulses, or inverting the video (interchangingblack and white).

29Unless all subscribers are provided with STBs that can receive digital delivery.



2009, and all television broadcast delivery is now done by digital methods (more tofollow). This conversion-to-digital process is taking place worldwide, and will likelybe complete by 2020 or earlier.

Recording Analog-Format Broadcast or Cable Television

37. Video recording was complex and costly (and therefore confined to thebroadcast studios) until 1976, when home video recording devices were introduced inthe U.S. by Sony (“Betamax”) and its competitors (“VHS”). These devices replicatedthe “front-end” of a television set, to recover video and audio from the incoming signal(broadcast or cable), and used a clever spinning tape head arrangement30 to captureon magnetic tape a reasonable replica of an NTSC analog television program. Thetechnique was entirely analog (no digitization, no numbers), and recorded only ontospecial video tape media (no computer media, no “hard disks,” etc.), as a magneticrecording (analogous to an analog audio tape recording; see the footnote at ¶18).

38. Videotape technology has been upstaged by digital alternatives such as op-tical disc recording (most famously in the form of DVD’s and blu-ray discs – whethersold with pre-recorded content, or recorded with a disk recorder), which creates apermanent copy of the video material; or by recording to a computer-type hard-diskdrive (“hdd”), where the video copy is stored as a computer file. These digital meth-ods require that the program material be converted from analog to digital form, if itis not already. (This is done internally and automatically in devices like TiVo r© andother personal video recorders.) Digital television and digital video is discussed next.

Digital Television: What Is It?

39. Just as an audio signal can be digitized (i.e., its instantaneous amplitudeis measured, at rapid intervals, and converted to a succession of numbers), and sub-sequently transmitted, stored, or processed (¶¶18–20, above), so it is possible todigitize the video signal that represents successive frames of picture. Although onecould imagine simply sending the digitized version of traditional NTSC as “digitalTV,” in practice one takes advantage of the enormous processing finesse of contempo-rary digital electronics to economize by compressing the raw video signal to a smallfraction of its native size before it is delivered. The use of compression, along with thefact that a digital signal is “just numbers,” permits the delivery of multiple programson what would otherwise carry just a single video signal (program), typically by afactor of five to ten.

40. There are several reasons for this improvement. One is the ability to detectand correct transmission errors by numerical techniques, allowing one to operate withreceived signal levels that are close to the “noise” (from interference, or signal lossdue to range or obstructions); with purely analog transmission a large received sig-

30This is known as a “helical” tape head, which creates successive narrow slanted tracks acrossthe slowly moving tape, each one holding one field of video. The use of a rapidly moving tape head

eliminates the need for rapidly moving tape.



nal/noise ratio is necessary to reduce the visible effects of noise (“snow”) to acceptablelevels.

41. A second reason is the spectral efficiency of digital transmission – or, moreaccurately, its improvement compared with the inefficiency of analog signaling. Thiscan be seen in Figures 5 and 6, a pair of spectra taken directly off my home antenna inMarch of 2009, a time during the switchover to digital when both analog and digitalbroadcasts were taking place.

720 730725

Frequency (MHz)

videocarrier

audiocarrier

colorcarrier

CH 56

Figure 5: The spectrum of 6MHz-wide analog Channel 56 in Boston, asseen in May 2009. The video information resides in the sideband tails,while most of the transmitted power is wasted in the non-informationalvideo carriers.

“pilot”carrier

666 676671

Frequency (MHz)

CH 47

Figure 6: Digital Channel 47, seen also in May 2009, fills its 6MHz spec-trum allocation with digitized video. It carries five times as many pro-grams, with comparable (or better) picture quality.

42. Compression aims to reduce by a large factor (tenfold or more) the quantityof numbers needed to describe the succession of picture frames, without significantly



degrading the image quality. This seemingly impossible task takes advantage of re-dundancies in a moving picture, and of limitations in human visual perception.

43. Contemporary digital video compression is a rich and mathematically com-plex subject, the result of enormous effort in the applied mathematics and electricalengineering communities over the last several decades. But the basic tricks are easyenough to understand. The process begins by exploiting the fact that portions of animage near each other tend to be similar; so one can encode and send the (smaller)differences of brightness/color from a set of reference points, rather than the fulldescription of brightness/color at each point. Likewise, successive frames tend tobe similar, so one can define a sparse collection of index frames, and send only thedifferences for intervening frames.31 A further trick exploits the fact that the imageoften contains moving objects, or a panning camera; so it is efficient to calculate “mo-tion vectors” predicting the approximate motions, and then send only the (smaller)corrections from the predicted values.

44. These methods greatly reduce the needed bitrate (number of numbersper second), and they do so without any loss of picture quality whatsoever – theyare “lossless.” That is because the original digital image can be fully and exactlyrecovered by applying the numerical differences in the reverse order. However, fur-ther bitrate reduction is desirable (and often necessary), and this is accomplished bylossy compression. This consists essentially of discarding the less important imageinformation (from a psychovisual standpoint); the tradeoff is a somewhat degradedimage (the degree of degradation depending on the degree of compression), whichhowever can differ from the pristine original in ways that are hardly perceptible tothe viewer.32 The mathematics involves methods with names like Discrete CosineTransform, Variable Quantization, and Huffman coding; but the bottom line is thatthese methods permit a large reduction in bitrate with a relatively small reduction inperceived image quality.33

45. The tradeoff of image quality with bitrate is gradual, and somewhere inthe process a decision is made as to the desired final bitrate.34 A major constraintis imposed by the fact that both digital broadcast and digital cable television in theU.S. is sent on channels that conform to the same 6MHz channel spacing that has

31More precisely, it is the corrections from an interpolated guess between index frames (or referencepoints within a frame) that is sent.

32If such effects are noticeable, they are called compression artifacts; these are sometimes seen,in over-compressed “jpeg” still photographs, as the patchy blocks or the “mosquito noise” aroundedges. Similar considerations apply to lossy audio compression, for example highly compressed“MP3” music files.

33The video compression recipe used for all digital TV broadcasting in the U.S. is named “MPEG-2,” and described in the Advanced Television Systems Committee documents A/53 and A/54 (seewww.atsc.org). An improved set of compression methods are incorporated in the set of standardsknown as MPEG-4; these are widely used by the cable and direct broadcast satellite services, as wellas for video streaming over the Internet.

34Which is permitted to vary, as program content changes. This is known as variable bitrate, orVBR, as distinguished from constant bitrate, or CBR.



been used for television since the 1940’s. In practice (see ¶49, below) it is possibleto send about 20 millions bits per second (Mbps) on a digital broadcast channel,and nearly double that on a digital cable channel. A typical compressed bitrate forNTSC-quality (SDTV) digital video is about 4 Mbps; thus digital broadcast televisionstations are able to combine up to 5 or so NTSC-quality programs on a channel, whilecable providers are able to combine up to ten. (Note that a frequency “channel” isno longer a single “program” – putting multiple programs on sub-channels withina single channel is called “multicasting.” More on this beginning at ¶47, below.)High-definition (HDTV) content requires nearly the full broadcast bitrate, so onlyone HDTV program can be broadcast on a channel; on cable systems it is possible tocombine two HDTV programs onto one channel.

46. It is worth admiring the impressive bitrate reductions that these methodsare achieving: a simple calculation35 shows that digitizing an HDTV program withoutany compression would produce a bitrate of roughly 1000 Mbps, whereas contempo-rary compression methods reduce this to a modest (and deliverable) 20 Mbps, a50-fold reduction! And comparable reductions are routinely achieved with SDTV.

Digital Television: Broadcast and Cable Delivery

47. Over-the-air digital television broadcast and digital cable television bothuse traditional frequency “channels,” upon which they put a stream of numbers (thecompressed video described in ¶¶39–46, plus the associated digitized audio), insteadof the continuous analog waveform that was used in traditional NTSC television. Be-cause of the economical bitrates produced by compression, there is adequate capacityon a single cable (or broadcast) channel frequency to accommodate several simulta-neous programs. This is called multicasting, and permits up to four or five SDTVprograms (a “multiplex”) to be carried on a single broadcast channel frequency.36

One can think of these as sub-channels.37

48. For either OTA digital broadcast or digital cable, the set-top box (STB) orequivalent hardware within the television set receives the multiple channel frequencies,each with its multiplex of programs. The STB or television knows the programassignments within each channel, and is able to pull out the sub-channel that theviewer selects, which it identifies by assigning a “virtual channel number.” Thatis what the viewer chooses – it is displayed on the STB, and on the screen duringselection. For example, the viewer might select HBO, which is assigned a virtual

35Bitrate is approximately 1080 lines × 1920 pixels/line × 30 frames/second × 16 bits/pixel,which multiplies out to 995,328,000 bits/second.

36Cable delivery is more efficient, and permits as many as ten SDTV programs on a single channel.37Because the cable (or broadcast channel) has a fixed total bitrate, the bitrates of the individual

programs that are being multiplexed must be adjusted such that their total combined bitrate matchesthe channel capacity. This is called bitrate grooming, and involves null padding (adding nulls, toincrease a program’s bitrate), on-the-fly compression (to reduce a program’s bitrate), or even timeshifting of program content (to prevent unlucky alignment of peak bitrates of the various programs).Digital television packets include “presentation time stamps,” so it’s OK to move things around abit as they flow through the various digital pipes on their way to the television screen.



602 662632

Frequency (MHz)

CH 38 CH 39 CH 40 CH 41 CH 42 CH 43(ana) (dig) (dig) (dig) (dig)(ana)

Figure 7: A country in transition: RF spectrum of channels 36–45 (eachpermitted 6MHz of spectrum) as seen on our antenna feedline in Cam-bridge, Massachusetts on May 6, 2009. Analog channels 38 and 40 eachcarry one standard-definition (SDTV) program, while digital channels 39and 41–43 can carry up to five SDTV programs each (though it’s morecommon to see one HDTV and one SDTV program).

channel (for example 82), and which might actually be just one of ten sub-channelprograms carried on one digital cable channel frequency. The STB then capturesthe HBO stream, decrypts and decodes its MPEG-2 encoding, and converts it todisplayable video for a television monitor (or flat screen, etc.).

49. In more detail, and in the language of digital television engineering, thedelivery channel (digital broadcast or digital cable) is called the “transport stream,”which can be thought of as a data pipe carrying some 20 Mbps (broadcast), or 38 Mbps(cable) in each frequency channel.38 The MPEG-2 specification dictates that the dataput onto the transport stream must be broken into little packets of data, each of length188 bytes, and each belonging to an individual program. When multiple programsare sent on one transport stream, it is called a “multi-program transport stream,” orMPTS; if a single program, it’s a “single-program transport stream” (SPTS). Repeat-ing what was said earlier: a broadcaster can put five standard-definition programs(or one HD program and one standard-definition) onto a single broadcast channel’sMPTS. The individual packets are identified by program, and they are interleaved intime (see Figure 8).

50. To put it another way, the several programs that will be put into a multi-transport program stream (a “program multiplex”) are cut into short pieces (packets,about 40 microseconds in length for digital cable), tagged with unique identifiers(called PIDs, for “program identifiers”), and then interleaved with the pieces (pack-

38The disparity has to do with the particular modulation schemes used: for broadcast it is called“8-VSB,” whereas cable uses the more efficient “256-QAM” (pronounced “kwahm”), thereby ex-ploiting cable’s better signal-carrying properties to carry roughly twice the information content.



Figure 8: Multiple programs can be interleaved into one digital transportstream, as a “multitransport program stream.” Their individual video andaudio packets are tagged with program identifiers (PIDs), by which theycan be selected and reassembled. (from Figure 7.1 of ATSC Doc. A/54A.)

ets) from the other programs that share the same transport stream. At the STB ortelevision set the packets belonging to the selected program are identified (“filtered”)by looking for their PIDs, and then reassembled into a single program transportstream to be decoded and displayed. In Figure 8 there are two programs (P1 andP2), each with video (V) and audio (A), with their corresponding PIDs (1024, 1025,377, 378); they are shown as the interleaved multiprogram stream at the top, and asfiltered into their respective single-program streams at bottom.

Digital Video Streaming over Internet

51. With steady improvements in Internet bandwidth (i.e., speed), it has be-come practical to deliver video (and associated audio) through the same Internet in-frastructure that serves personal computers and mobile devices (cellphones, tablets)with their email, web browsing, and so on. Some familiar examples of Internet videostreaming are news services such as CNN, government services such as NASA TV,and peer-to-peer services such as Skype. Just as with broadcast or cable delivery, theultimate payload is a stream of numbers that constitute the video and audio content,in some efficient compressed format that takes advantage of sophisticated encodingschemes with names like “H.264” (also known as “AVC”), one of the current favorites.At the viewer’s end the digital content is decoded39 to recover the video and audio.For some services (e.g., Skype) a dedicated client program must be installed, whereasfor others (e.g., NASA TV or CNN) a standard Internet browser (such as InternetExplorer, Safari, or Firefox) suffices.

39Hence “codec,” a contraction for coder-decoder, usually appended to the name of the compres-sion scheme, e.g., “the H.264 codec.”



Recording Digital Television

52. The conversion of the analog audio and video of the real world into digitalform is hard work — but it makes the task of recording straightforward. That is be-cause a single program received at the STB or OTA television receiver is, in essence,just a stream of numbers, which can be filtered from the multiprogram stream, as-sembled in a temporary memory “buffer,” and written to a hard disk file just likeany computer file. In that sense, a set-top box or OTA receiver with digital videorecorder (DVR) is simply a special-purpose computer, with the usual processor, harddrive, etc., and having additional hardware to do the special digital video tasks –receive the broadcast or cable signal, generate the displayable output, take controlcommands from the infrared remote “clicker,” and so on. A typical contemporaryset-top box or OTA receiver with DVR contains a computer processor chip and asso-ciated memory, a hard drive of 250GB or greater capacity, and various video-relatedadditional hardware (input tuner, video memory, display and audio drivers, etc.).

53. It is worth noting that any digital storage medium of adequate speed andcapacity can be used to store digital video content; at the consumer level there aremany “personal video recorders” (PVR) that store programs on recordable DVDs oronto solid-state “flash” memory chips. There are also digital video tape recordersthat can store both SDTV and HDTV onto a digital variant of VHS tape.



IV. The Aereo System

Overview

54. The Aereo technology platform allows a consumer to outsource equipmentthat lets them receive, view, record, and play back over-the-air broadcast television,the same functionality they could obtain with consumer equipment installed at theirhome.40

55. Stated compactly, the Aereo system allows members to make a personaland unique recording of any selected over-the-air broadcast television program in themember’s home market.41 On their mobile device or computer the member selects theprograms to be recorded by equipment remotely located at Aereo’s facilities, for his orher personal use only. The member streams the program from this unique recording42

through the Internet to their television, computer, or mobile viewing device, eitherupon recording or at any later time. Aereo requires the member to be physicallywithin the original broadcast area in order to receive their streamed content recordedfrom that source.43

56. In greater detail, the member schedules recordings in the same manner aswith a home DVR or a “remote-storage DVR” service, using an interface guide to theirremote DVR to select the program content they wish to view or record. The guide isdisplayed on their viewing device, e.g., an iPad or iPhone. At the time that selectedprogram is broadcast over the air, an antenna at Aereo, unique to that member,is tuned to the broadcast station, and recording onto disk storage of the selectedprogram commences.

At any later time the member can initiateplayback of previously recorded content. As with a conventional DVR, the viewercan pause or rewind playback of stored content. And, as with a conventional DVR,the member can initiate recording of a program that is in progress.44

40In this report I have used terms such as “record” or “play back” in the same way they areconventionally used in connection with a home DVR or remote-storage DVR. For example, the phrase“the member records. . . ” means that the member causes the recording to be scheduled or activated,by selecting from an on-screen guide, etc. The subsequent recording takes place automatically, undercomputer control, requiring no human intervention.

41

This report deals only with the OTA broadcast channels.42Unique even at the recorded bit level: when the same program is recorded by several subscribers,

the recorded content differs in detail, for example with occasional unique video idiosyncrasies thatcan be located when the frame is frozen and inspected. This was confirmed by experiment, withcareful file comparison forensics.

43If the member’s IP address and/or a geolocation check suggests otherwise, a message is displayedand no viewing is permitted, unless the member confirms that his location is indeed within thebroadcast area.

44The recording is not retroactive – it records only from the time of initiation.

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57. The member can also view the recorded content as “Watch Now” playback:in this process the member records the selected program to disk, and, with a delayof several seconds, streams it to their viewing device from the recorded image onthe disk.45 When viewed this way, the program is not streamed directly – it is firstrecorded, then played back from that member’s recorded copy.

Technical Details

Figure 9: A single Aereo antenna.

45In this report I will refer to this mode of viewing as “Watch Now,” to be distinguished fromwatching a previously recorded program; the latter I’ll call “Playback.”

46

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Figure 10: A closeup of a portion of the Aereo antenna farm (left), and anincoming wave’s view of a single “crate” of antenna/tuner boards (right).

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47A member may register up to five viewing devices, but only one is permitted to receive a recordedprogram at any given time.

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Comparison with Cablevision RS-DVR

65. The operation of the Aereo system can be compared with that of Cablevi-sion’s RS-DVR (“Remote-Storage Digital Video Recorder”), based upon the publiclyavailable description and technical details of the latter that are found in the decisionsof the District Court (2007)48 and the Second Circuit Appeals Court (2008).49

66. Both systems permit registered subscribers to initiate recording of pro-grams on central servers at the respective company’s facilities, and to stream thoserecordings during subsequent playback. In both cases the recordings are unique toeach subscriber, and playback is restricted to that one entity (via the member’s ac-count login and registered viewing device, for Aereo; and for the set-top box throughwhich the recording request was made, for RS-DVR). And in both cases a recordingcan be made only during “linear programming” (i.e., the time at which that pro-gram would have been received by the subscriber via broadcast or by normal cabledelivery).

67. In neither system does the provider determine the programming carriedon the channels available to the subscriber.

68. Neither system permits subscribers to record a program retroactively if therecording was initiated mid-program (“A customer cannot, however, record the earlierportion of a program once it has begun.”50). In both systems a subscriber may recordonly programming that he or she would be entitled to receive in real time (“publicairwaves” broadcast in the member’s geographical area, for Aereo; and subscribedcable content, for RS-DVR). In both systems a subscriber can record a programeither by using an on-screen program guide, or by pressing a “record” button whilewatching a program in progress; if no subscriber initiates recording of a particularprogram, no recording is made. In both systems, “To begin playback, the customerselects the show from an on-screen list of previously recorded programs.”50

69. Now for some differences. In Cablevision’s RS-DVR system, all program-ming content (i.e., all programs carried by Cablevision) is stored temporarily in an“ingest buffer,” whether or not any subscriber has requested it.51 By contrast, Aereohardware does not buffer a program (and, indeed, does not even receive it) unless amember records it.

70. In the Cablevision system a single input stream of programming is split and

48Twentieth Century Fox Film Corp. v. Cablevision Systems Corp., 478 F. Supp. 2d 607 (S.D.N.Y.2007).

49The Cartoon Network LP, LLLP, v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008).50The language used by the Second Circuit Appeals Court, describing the Cablevision RS-DVR.51According to the Second Circuit Appeals Court, “It is undisputed that Cablevision, not any

customer or other entity, takes the content from one stream of programming, after the split, andstores it, one small piece at a time, in the BMR buffer and the primary ingest buffer. As a result,the information is buffered before any customer requests a recording, and would be buffered even ifno such request were made.”



copied to make the multiple subscriber recordings;51 with Aereo the content for eachmember’s recording is derived from a separate antenna and TV tuner, and thus eachcopy is unique to the member from reception through playback. Cablevision receivesits programming content via a closed network, whereas Aereo members record signalsreceived off-the-air by their unique antenna. In Cablevision the recorded contentstreams through fiber and cable to Cablevision-supplied hardware (the set-top boxor CableCARDTM) from which it can be viewed on a connected screen, whereas forAereo there is no company-supplied hardware (or software that must be downloadedand installed) at the member’s location – the member-streamed content is playableon the member’s browser-capable mobile device (tablet, smartphone) or computer(laptop, desktop), running supported Internet browsers (Internet Explorer, Firefox,Safari,52 etc.).

Comparison with Off-the-Air DVR

71. Viewers of off-the-air television can record broadcast programs directly.The technology dates back to the analog methods of Betamax and VHS (¶37), su-perseded by digital video recorders such as the Panasonic DMR-E80H (a “hybrid”:analog television, recorded digitally to magnetic hard disk or optical DVD), and mostrecently by fully digital recording (digital television, recorded digitally to hard disk,tape, or other digital storage media).

72. A familiar example of the latter is exemplified by the TiVo Premiere, aset-top box that accepts incoming program material from both cable and an off-the-air (“rooftop,” though it need not be located on a roof) antenna. TiVo users maysubscribe to the TiVo service, and to a cable television provider, to take advantageof cable offerings and TiVo scheduling. But alternatively the owner can use the TiVobox to receive and record off-the-air broadcasts without either service. The viewercan watch broadcast television live, or upon later playback (or both). TiVo is notunique, and similar capability can be had by combining a digital off-the-air receiverwith digital recording.53

73. TiVo also provides the ability to transfer recorded programs to a computeror mobile device. As their website says, “TiVo Desktop lets you transfer shows to yourcomputer, then take the shows on the road.”54 Recorded shows can also be burnedto optical disc (“Burn those shows and movies to a DVD” [footnoted “additionalsoftware required from Roxio”]), or streamed to an iPhone (“Use SlingPlayer Mobileto watch your shows from your iPhone” [footnoted “SlingPlayer Mobile works when

52Currently only Safari is supported. The Aereo website answers the question “Which devices andbrowsers can I use Aereo on?” with the statement “Other devices are in development.”

53For example, at our home we have a Samsung SIR-T165 tuner combined with a JVC HM-DH30000 digital video tape recorder.

54Further described with these words: “Once you’ve recorded your favorite shows on your TiVo r©

box, you can transfer them to your computer as long as your TiVo box is connected to your homenetwork, and you have TiVo r© Desktop software installed on your PC, or Roxio Toast Titaniumsoftware installed on your Mac.”



you own a Slingbox”]).55

74. TiVo is just one example of a “living-room” appliance that provides directOTA viewing and recording. Other contemporary examples include models such asthe Channel Master CM7400 and the Magnavox MDR513H/F7 (or MDR515H/F7).Neither requires a subscription. The Channel Master CM7400 describes itself as a“DVR with No Monthly Fees!,” and “. . . the most advanced subscription free HDTVDVR solution available. Channel Master TV enables free over-the-air HD broadcasts,adds full DVR functionality including the ability to pause, rewind and record live TV,store and manage your personal media content, plus access to OTT web content suchas On Demand Movies and TV shows and more delivered right to your TV.” Itsbrochure summarizes it this way:

• No subscription fees• Pause, rewind, and record Live TV• Record one program while watching another• Schedule recordings• Up to 35 hours of HD recording or up to 150 hours of SD recording

75. The Magnavox MDR513H/F7 (or its larger capacity sibling) describes itselfas an “HDD & DVD Recorder with Digital Tuner,” and, like the CM7400, requires nosubscription. It connects directly to a rooftop antenna to receive and record broadcasttelevision. It adds optical disc (DVD) recording functionality, with the ability to copyrecordings from hard disk to DVD or vice-versa.

76. Similar functionality can be had with a “TV Tuner Card” attached to apersonal computer. A contemporary example is Elgato’s “EyeTV” USB tuner stickand software package, aimed at Macintosh users (with support for Windows as well).According to Elgato’s website, you can “Watch, pause, and rewind live TV on yourMac,” you can “Record hours of television directly onto your Mac or external harddisk,” and you can “Export your TV shows to iTunes automatically for playback onan iPhone or iPad.” You can also “Stream live or recorded TV to an iPhone with theoptional EyeTV app.” The Elgato package, in essence, provides Aereo capability toa home computer user.56

55The SlingPlayer is described this way on the Sling Media website: “Watch Your TV on YourSmartphone or Tablet. Really. Extend your living room TV experience to your smartphone ortablet with SlingPlayer software. With a Slingbox at home and SlingPlayer on your compatiblemobile device, enjoy live or recorded TV over a 3G, 4G or Wi-Fi connection. If you like TV, it’shard not to smile when you take control of your TV and DVR from your smartphone or tablet. Flipthrough channels with the virtual remote control. Pause, fast-forward, rewind and even scheduleDVR recordings. Never miss another show or game whether you’re in the back yard, out to lunchor on the other side of the world. It’s your TV. Don’t let it be trapped in your living room. Set itfree!”

56As described on the Elgato website, “Watch, record, and enjoy live TV on your iPhone or iPadvia a 3G or Wi-Fi connection. At last, you dont have to leave all your great TV shows at home; theEyeTV app puts the power of award-winning EyeTV in the palm of your hand. The EyeTV appaccesses EyeTV running on your Mac at home to deliver these great features to your Apple device:* Watch live TV and change channels anywhere (via a Wi-Fi or 3G connection)



77. The Slingbox that enables TiVo to stream recorded programs (¶73) pro-vides by itself the stand-alone capability to stream live over-the-air broadcast TV. Asdescribed in their literature, “Why leave your HDTV at home? The Slingbox PRO-HD delivers your favorite shows and content over the Internet in stunning high-definition (HD) to your laptop, tablet, smartphone or connected device. It gives youthe same great features and ease of use as the Slingbox SOLO with the benefit of mul-tiple inputs, a built-in TV tuner and a true-to-life HD viewing experience.” That is,a home viewer with a Slingbox PRO-HD connected to a rooftop antenna and to theirhome internet connection is able to stream to their mobile viewing device the livetelevision programs being received at their home; and the mobile viewer can controlthe Slingbox to change stations.57

* Watch your EyeTV recordings* Browse the comprehensive Program Guide and view details* Start recordings back home on your Mac immediately or schedule them for later* View and edit your recording schedules* Automatically launch EyeTV on your Mac at home as neededThe EyeTV running on your Mac converts live TV to the correct format for streaming to your Appledevice, ensuring optimal picture quality.”

57As summarized on the Sling Media site, “Don’t miss your favorite TV shows and events whenyou’re away from home. On the road, at work, or on vacation, a Slingbox makes it easy to watchand control your home TV from virtually anywhere, anytime on your laptop, tablet, smartphone orconnected device.” (emphasis added)



V. Response to Plaintiffs’ Expert Reports58

78. I have reviewed the Kelly and Volakis expert reports, and the followingsections constitute my response.

The Kelly Report

79. The Kelly Report does not dispute (and appears to confirm) that everytelevision program watched by an Aereo subscriber (whether in “Watch Now” mode,or played back from a list of “Recordings”) (1) is received by an individual antenna(¶28ff), (2) is recorded as a unique copy on magnetic disk storage from the uniqueset of digital information corresponding to the selected program (¶35), (3) is playedback from that unique recording (even when in Watch Now mode, ¶3559), and (4)that these actions are under the control of the subscriber.

80. To clarify point (3), the data comprising the transcoded audio and videoof the subscriber’s selected program is copied onto disk storage in the same fashion,whether the subscriber is recording without watching, or watching a program inprogress. In the former case the recorded data is not streamed, and the file is preservedfor future playback after the broadcast is completed. When a subscriber watches aprogram in progress, the same recording process takes place, but with the recordedaudio and video read back from the disk image after a short time delay. If thesubscriber pauses the streaming, recording continues, and playback resumes from theplace where it was paused. Unlike a scheduled recording, the disk recording of aprogram that was being watched in progress is not preserved after the subscriberstops watching, unless the subscriber has pushed the record button before exiting.

The Volakis Report

58Expert Report of Dr. John P. J. Kelly (the “Kelly Report”), and Expert Report of JohnL. Volakis (the “Volakis Report”), both dated 10 April 2012.

59In ¶38 it is unclear whether the penultimate sentence is asserting that “Watch Now” contentis not recorded to disk. In fact it is, consistent with ¶35; the progress of digital content to disk inWatch Now mode is the same as in Record mode.

60The Cartoon Network LP, LLLP, v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), at page 8.

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Supplementation

This report represents my current opinions, based upon the materials I havereviewed. If additional materials or information come to my attention, I reserve theright to revise or supplement the opinions in this report.

Paul HorowitzCambridge, Massachusetts; 17 April 2012

67According to the FCC website, these channels are, respectively, WABC, WNET, and WNBC,with virtual channel assignments of 7, 13, and 4, and transmitting at frequencies (lower to upperedge) of 174–180MHz, 210–216MHz, and 554–560MHz.

68These figures include 7.4 dB added to the power displayed on the spectrum analyzer, to accountfor the analyzer’s 1 MHz resolution bandwidth.

69http://www.dennysantennaservice.com/ez hd tv Antenna.html

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EXHIBIT A


Curriculum Vitae — Paul Horowitz

Born: December 28, 1942

Degrees: A.B. (Physics) 1965, Harvard (summa cum laude)A.M. (Physics) 1967, HarvardPh.D. (Physics) 1970, Harvard (Optical Studies of Pulsars, advisor: R.V.Pound)

Positions, fellowships & awards:

currently Professor of Physics and of Electrical Engineering, Harvard University

1965–66 Sheldon Traveling Fellowship1966–67 NSF predoctoral fellow1967–70 Society of Fellows, Harvard1971–73 Alfred P. Sloan fellow1974– Professor of Physics, Harvard1977 Visiting scientist, University of Colorado1978 Visiting scientist, Arecibo Observatory1981–82 Senior research associate, NASA Ames Research Center1982–85 Board of editors, Review of Scientific Instruments

1983– JASON study group1985 The Year’s 100 Top Innovations, Science Digest

2003 “Treasured Textbooks,” IEEE Spectrum

(three texts on circuit design were so honored,of which ours is the only one in English)

Electronic engineering interests:

Half-century of circuit design experience — thousands of circuits, hundredsof instruments

Author (with W. Hill) of The Art of Electronics (Cambridge University Press,1980, 1989), a textbook of circuit design, going into its third edition, withworldwide sales of a million copies, and translations into ten languages

Teacher (and originator) of “Laboratory Electronics” design course at HarvardUniversity, taught also at other universities and technical schools

Originator and co-supervisor of the Electronic Instrument Design Laboratoryat Harvard

Other research interests:

optical timing experiments on the Crab Nebula pulsarsearches for new pulsars with Fourier and correlation techniquesdevelopment of synchrotron radiation facility at CEAdevelopment of a scanning x-ray microscopedevelopment of a scanning proton microprobe in airstudies of the e.coli rotary enginecoded-aperture spectroscope for cometary astronomyspeckle imagingradiofrequency searches for extraterrestrial intelligence (SETI)billion-channel digital spectrum analyzer for SETIastronomical interferometrysearch for ultraheavy mattertechnologies for humanitarian deminingsearch for hydrogen condensations in the early universeoptical SETI

1


Litigation-related and other consulting:

Technical Consulting, on behalf of the US government:

MITRE Corp. (an FFRDC)

Patent and Copyright Litigation (last 4 years)

Beginning in April 2005 I served as an expert witness in the case of Power Integrations, Inc. v.

Fairchild Semiconductor International, Inc., and Fairchild Semiconductor Corporation,1 tried in theU.S. District Court for the District of Delaware, where my participation took the form of ExpertReports, Rebuttals, depositions, and testimony at trial. Beginning in October 2005 I served as anexpert witness in the case of Black & Decker, Inc. v. Robert Bosch Tool Corporation,2 tried in theU.S. District Court for the Northern District of Illinois, Eastern Division, where my participationtook the form of Expert Reports, depositions, and testimony at trial. Beginning in 2006 I servedas an expert witness in Twentieth Century Fox Film Corporation et al. v. Cablevision Systems

Corporation et al.,3 tried in the U.S. District Court for the Southern District of New York, wheremy participation took the form of Expert Reports, depositions, and testimony at trial. Beginningin April 2009 I served as an expert witness in United States of America v. Wu et al.,4 tried in theU.S. District Court for the District of Massachusetts, where my participation took the form of trialtestimony and declarations. These cases involve electronic power conversion technologies, worksiteradios, remote storage digital video, and electronic component technologies, respectively.

Recent Publications & Conference Proceedings

The Art of Electronics, 3rd edition. with W. Hill. Cambridge University Press, approx 1500 pages(in production, 2012).

“Millions and Billions of Channels.” with D. Leigh, chapter in Schuch, H. Searching for Extrater-

restrial Intelligence, Springer/Praxis (2011).

“Optical SETI.” American Association for the Advancement of Science Annual Meeting (2010).

“Robert Vivian Pound” (obituary). Physics Today 63 9, 65 (2010).

“The Planetary Society’s All-Sky Optical SETI: Where Are We Now?” The Planetary Report 28 6(2008).

“Our Place in Space and Time.” Getty Center, Los Angeles (2007).

“PulseNet – A Parallel Flash Sampler and Digital Processor IC for Optical SETI.” with A. Howardet al., IEEE Custom Integrated Circuits Conference (2006).

“Optical SETI.” Royal Astronomical Society, London, (2006).

“Synchronization of the Acoustic Evidence in the Assassination of President Kennedy.” withR. Linsker et al., Science and Justice 45 3 (2005).

“Search for nanosecond Optical Pulses from Nearby Solar-type Stars.” with A. Howard et al.,Astrophysical Journal 613 1270-84 (2004).

“Optical SETI with NASA’s Terrestrial Planet Finder.” with A Howard, Icarus 150 163–67 (2001).

in addition, author/coauthor of numerous technical reports with restricted publication on topics innational security.

1on behalf of Fairchild2on behalf of Bosch3on behalf of Cablevision.4on behalf of Wu et al.

2


EXHIBIT B


Exhibit B: Relevant Materials Reviewed

Aereo 0000890-0000898 Aereo 0008637 Aereo 0009566 Aereo 0009694 Aereo 0011926 Aereo 0012275 Aereo 0026142 Aereo 0037825

Photographs of receiver and transcoder PCBs provided to me by Aereo, attached to this report as Exhibit C

Tests with temporary account on Aereo

Expert Report of Dr. John P. J. Kelly (10 April 2012)

Expert Report of John L. Volakis (10 April 2012)

Some references cited in the Volakis Expert Report

Conversations with David Cann, Chet Kanojia, Eddie Kohler, Joe Lipowski, and David Pozar

Spectrum analyzer plots from tests on 16 April 2012, attached to this report as Exhibit D


EXHIBIT C


RE

DA

CTE

DCase 1:12-cv-01543-AJN Document 97-1 Filed 05/29/12 Page 39 of 48

REDACTEDCase 1:12-cv-01543-AJN Document 97-1 Filed 05/29/12 Page 40 of 48

EXHIBIT D


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