The Supreme Court Sides Against Aereo

Wednesday, June 25, 2014 - 10:21 AM

Aereo is a service that allows users to stream broadcast TV over computers, phones, tablets, and so on. Since its inception, it has faced a barrage of lawsuits from broadcasters saying that it violates copyright law's prohibition against "public performance" of their content. Aereo consistently won lawsuits in lower courts, but today Aereo lost against the major broadcasters in the Supreme Court.

Aereo's big defense in this case was the technology that it used. Rather than using, say, a set top box to receive information, Aereo created data centers that consisted of thousands of tiny antennas. Users create a 1-1 connection between their device and one of those antennas. Aereo's argument amounts, essentially, to "How is it a public performance of this stuff? It's one person connecting to one antenna, and that can't be considered a public performance!" Listen to this On the Media interview between Bob and the CEO of Aereo, Chet Kanojia.

Broadcasters argued that Aereo made it harder for broadcasters to negotiate "retransmission fees" with cable companies and made their advertising less valuable.

Writing for the majority, Justice Breyer agreed, writing in the decision " "The statute makes clear that the fact that Aereo’s subscribers may receive the same programs at different times and locations is of no consequence. Aereo transmits a performance of petitioners’ works 'to the public.'"

In his dissent, Scalia argues that the real problem is not public performance but live performance. He says that Aereo might be able to remain open if it "time-shifts" its broadcasts, meaning it doesn't show them live. It's unclear whether the rest of the court agrees with him.

I have no idea how to feel about this. Honestly, as someone who finds this kind of technology incredibly convenient, I am sad to see it go. But it does seem like Aereo was skating by on a loophole. I wonder if they themselves could pay some kind of retransmission fees that would satisfy the broadcasters, but considering how low their subscription costs were, $8 a month, it seems unlikely that Aereo could give the broadcasters enough monetary incentive to let their technology continue to exist. I guess we'll see.


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Comments [9]

Since when is "Waaah, we won't be able to make as much money!" a legal argument? That, in a nutshell, is the only argument made by the cable monopolies. They want to be able to charge ten times what Aereo charged for it's antenna service.

Maybe Aereo can morph into a building-by-building community antenna provider, which would be viable in cities where big apartment buildinigs would make it economically feasible. The cable companies would still howl, but at least the "retransmission" nonsense would be taken out of the equation.

I've already cut the cord . . . $1,500 to $2,000 dollars a year, for 500 channels of mostly trash, is simply ridiculous. I'd have paid for Aereo service if they'd won this case, but it looks like all those broadcast ads will never be seen by this pair of eyes. Way to go(?)

Jun. 27 2014 05:12 AM
Chris from the Jersey Shore from Lakewood, NJ

Who wants cheap? Bring back Free! I grew up with free TV. Not long ago how much money did the Government spend on vouchers for analog - digital converters to ensure that "everyone" would (still) have access to free TV? Not sure how that Govt "fix" was ok but Aereo's business isn't. And how many people/ locations are NOT serviced by the government's " fix"? Where I live now, for example, is a " dead zone". No tower is close enough for the converter box and rabbit ears to work. Don't imagine that worked in cities where the buildings interfere with reception. Cable companies often have monopolies or if they don't, there's no real difference in price among available configurations between any of the available options ( how is that possible? ) And, whatever happened to customer loyalty? New customer "incentive pricing", is akin to drug dealers getting customers initially "hooked". I think more and more people I speak with are getting un-hooked due to price and value frustrations. As others have said- people are frustrated with content they don't want or watch. All I want are my favorite eight channels with good, clear quality. Free would be nice again, too!. The changes are going in the wrong direction! Technology fails us - -again. ( i.e. Will the sound quality of cell phones ever equal that of old fashioned land lines?).

Jun. 26 2014 08:37 PM
Fred from Jersey from Northwest New Jersey

At my doctor's office the other day, I mentioned something I had seen on television to him. He hadn't heard of it. He doesn't watch a lot of TV. When he's not practicing medicine, he's volunteering with the scouts, working out, or spending time doing things with his family. He doesn't need a 60" black panel on his wall because the wall is occupied by art work. I, on the other hand still watch network TV and cable probably because I'm a "boomer" and that's the habit I grew up with in that age. But, I'm also newly retired with new options and time to explore them. I don't need a 60" panel on my wall, either. And, I'd also like to think that I and my friends are smarter than the "Smart" TV!
So, word to the wise network bigwigs! My doctor and I are not alone!! Perhaps it might be time to glance out of your ivory towers and "wake up nad smell the coffee" you've been advertising. Get my drift?

Jun. 26 2014 12:29 PM
JED from Bergen County

Sad to hear the verdict against Aereo. I'm not a subscriber, but am a cord-cutter, and am very happy when any venture chips away at the seeming strangle hold the cable/satellite providers have over the US market. I hope Aereo find a way to continue legally, but as others have mentioned, when you have the lobbying and legal might in your favor what does that really mean other than maintaining the status quo and keeping the big businesses big.

Jun. 26 2014 12:05 PM
JD from Bergen County

Aereo did not skirt the law. Aereo scrupulously followed the dictates of the law, creating an overly complicated abomination just as the law dictated. More than anything they exposed the absurdity that results when legislators attempt to control technology.

Then they got slammed down anyway.

Let this be a lesson. You can and will find yourself in violation of the law no matter how hard you try to avoid it. This not no accident. Our politicians would rather that we live in fear of the system than the other way around. This is entirely contrary to the principles of freedom upon which our country was founded, but you know, that can just be swept under the rug as long as you spend enough money for a deep pile.

Jun. 26 2014 09:38 AM
Shepsl from Queens

Let's see: If I could buy an antenna and stick it out my window and hook it up to my TV to get broadcast stations (live/realtime, by the way), that's okay. But reception is lousy where I am because of the citiscape or distance. So I let someone else set up a dedicated, single antenna for me and pay them for that antenna, which is connected only to my TV with exactly the same result, but that's not okay? Here's the real issue: The cable companies are not about to let people like me who cannot afford or just refuse to pay their outrageous prices (and for hundreds of stations I don't want or need) to have any service; and the broadcast networks really don't want any form of over-the-air usage, even with all the money they rake in from commercials that eat up a good third of viewing time. Yes, it's not about "public performance" or any such smokescreen. Just follow the money. And when it comes to big business money vs the common interest, SCOTUS follows the money slavishly these days.

Jun. 26 2014 09:29 AM
LB from Putnam County NY

I have been an Aereo subscriber for several months. I also subscribe to cable because the triple play is not much more than just internet access and I knew Aereo's fate was in question. I watch very little broadcast television - just the local network news and 2 or 3 shows each week on one of the major networks and public television. Even though I have the cable subscription, I prefer to watch on Aereo because it is a much nicer picture. It fills the screen with clarity and without distortion. The Comcast cable picture is terrible in comparison. I don't mind time-shifting my viewing if I could continue to use Aereo. I don't mind paying more for Aereo. I am a prisoner of a Comcast cable company that has no competition in my area and does not provide good service. (My vote against allowing the acquisition of Time Warner Cable....) Where I used to live, we had Optimum and FIOS. They were in direct competition with each other. Service was excellent. Aereo should be allowed to continue if, for no other reason, to keep the cable companies on their toes in a free market. The old way of cable companies is obsolete. New technologies and new uses for existing technology must be allowed else we are tethering ourselves to the past, old and obsolete business models and technology. What's the point of developing new technologies if they can't be put into practice? I hope Aereo figures out a way to keep itself going within the Court's interpretation of the law. A very valuable service in many ways.

Jun. 26 2014 09:21 AM
johnf from North Miami Beach, Florida

Once upon a time, we endured commercials to get live free tv.Now we've been convinced to pay AND see commercials. A HD antenna has freed us from having to pay cable for broadcast programs. Most networks make programs available online the day after broadcast,no charge. That gives us a lot of good shows. We no longer complain of paying $200/month, with nothing to watch.

Jun. 26 2014 09:09 AM
'k from New York

You underestimate the power of greed. Investors, bankers, lawyers, TV executives .. they will not want to see this technology die. SCOTUS was just a negotiating tool. Watch as they all go to the negotiating table and come out with a deal that makes them all richer and the tv audience poorer in content and pocket.

Jun. 26 2014 08:38 AM

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TLDR is a short podcast and blog about the internet by Meredith Haggerty. You can subscribe to the TLDR podcast here. You can follow our blog here. I tweet @manymanywords and @tldr.

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