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.