I bet you could get a court to say it was legally identical.

I think the Aereo case, and Scalia's dissent, are super relevant here. It's when the court decided to go with vibes, instead of facts. The inevitable result of that (which Scalia didn't predict) was selective enforcement.

edit: so what I really mean is that I bet you could get a court to say whatever you wanted about it if you were far wealthier and more influential than your opponents.