Some Thoughts on Aereo

By · Published · legal, business, supreme court, ramblings

So today the Supreme Court ruled Aereo, the Internet TV streaming service, to be in violation of copyright law. And, at least to me, this was not unexpected.

I think one of the reasons that geeks glommed onto this service so much, besides a general dislike of copyright laws and a desire to stick it to big businesses and entrenched interests, is that we like clever things. And Aereo, with it's "rent a single antenna" system, was one of the cleverest hacks I've seen in awhile to try to get around a legal roadblock.

But the minute I read what they were doing, I was thinking, "Yeah, this is really clever, but, man, they're in for a world of legal trouble and it probably won't end well for them."

In essence, they were taking free over-the-air broadcasts and, through technological sleight-of-hand, were reselling it back to consumers through a subscription-based service with added enhancements. They created something that looked and acted very much like Hulu or cable TV with a DVR, but didn't pay a cent to the over-the-air networks - something that cable companies and other re-broadcasters do have to.

They argued that this was legal because they assigned you a single antenna that was no different than having an antenna in your house. The Supreme Court disagreed. In this case, they applied "Duck Logic" to it - essentially, "if it looks like a duck and quacks like a duck, it should be treated like a duck, regardless of how it works on the inside." How it works is not relevant when the end result is no different to consumers.

Consumers are licensed to receive free over-the-air broadcasts. But those broadcasts are intended for consumers, not for re-transmission by middlemen. Established and settled law has held that that different licenses cover re-transmission, and that the networks are entirely within their rights to demand payment for re-transmisson.

And while I appreciate Aereo's technical cleverness, I have a hard time disagreeing with the Supreme Court's conclusions.

What is surprising is the lengths to which the Supreme Court went to narrow this ruling, to such a degree that they devoted several pages specifically to pointing out other potential cases and how they are different and non-infriging. They're sending a very strong signal to lower courts not to intepret this ruling in a wide way, as it pertains to a very specific circumstance.

This comment on Hacker News does a really good job of breaking down the ruling.

The thing is, everyone (including Aereo) is bemoaning this ruling, but I think there's a great opportunity here. This doesn't have to be the end of Aereo. Just license the content legally and brand yourself as "The Internet TV Source." Become the better, awesome alternative to cable TV (because, let me tell you, my cable company is down there with the IRS in things that I like to deal with).

What annoys me, though, is that this ruling overshadowed a much more important ruling. In a 9-0 smackdown of a decision, the court ruled that police could not search a cell phone without a warrant. Why this was even up for debate is a mystery for me, but there you go. That ruling is very wide and far-reaching, and the effects of it is still being figured out, but that one ruling could very well shape a lof of cases very soon.

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