Aereo TV Service Threatened by Supreme Court CaseBy: Brian Powell - April 21, 2014
In a case which alludes to the 1984 Betamax case, the pseudo-TV service Aereo is being threatened by a lawsuit from major cable companies. On Tuesday, the Supreme Court will start hearing arguments from both sides.
Two years ago, Aereo was brought to New York City. The concept of the company was simple, yet brilliant. Utilizing thousands of tiny, thumbnail-sized antennas, Aereo would allow customers the opportunity to view public network broadcasts on their computer, phones, or tablets through a subscription service. At the Aereo headquarters, each subscriber would be assigned their own, individual antenna by which they would receive the television broadcasts. Not only can subscribers to Aereo watch the broadcasts live, but they can also watch them at a later date due to the cloud-based DVR services offered by Aereo.
Essentially, Aereo’s service provides public, free, network television broadcasts, through tiny antennas, to those who do not have or do not wish to have a TV or antenna set-up.
The complaint with Aereo from the cable companies and broadcasters is that the company does not pay a retransmission fee to broadcast said channels.
If Dish or DirecTV or Time Warner or any other cable company wants to transmit local, network television to its customers, it has to pay a retransmission fee because the Copyright Act of 1976 states that these cable companies provide a form of “public performance”, i.e. the companies show the broadcasts en masse to millions of patrons.
The major cable companies and broadcasters feel as if Aereo should have to pay the same retransmission fee.
“Aereo has built a business out of retransmitting broadcast television to members of the public without seeking authorization from or paying compensation to copyright holders… It is settled law that third parties must pay for the rights to transmit performances of copyrighted works to the public,” stated Washington Appellate Lawyer Paul Clement, the man representing the major broadcast companies in the suit.
Aereo’s lawyer, David Frederick, believes otherwise, however: “When an Aereo user plays her personal recording of a broadcast work and views its images and sounds over the Internet, the ‘performance’ she transmits and receives is that playback – not the broadcaster’s prior performance… Because Aereo’s technology cannot be used to transmit content other than from a user’s personal recording, it does not transmit the performance embodied in petitioners’ broadcasts… Nothing goes into or comes out of Aereo’s equipment except in response to a user’s commands.”
While the case may seem fairly cut and dry, it is the lack of legal precedence or proper legislation which makes this case so interesting and confusing. Only six cases with relevance to Aereo’s case have been documented in Supreme Court history, and the rulings have been so diverse that there is no discernible pattern as to what the decision might be: “There’s nothing that ties the Supreme Court’s hands in this case, which makes it doubly intriguing,” explained Shyamkrishna Balganesh, assistant professor at the University of Pennsylvania’s law school.
Making the case even more intriguing is the divide among even like-minded justices. Ruth Bader Ginsberg and Stephen Breyer, both Democratic justices appointed by Bill Clinton, are expected to side with opposite parties due to the vagueness of copyright law – Ginsberg is expected to side with the Copyright Act of 1976 due to her intimate knowledge of the subject, while Breyer is expected to side with Aereo due to his lenience toward intellectual property rights.
In the end, the decision as to whether or not Aereo will be allowed to continue is one with immense implications for the future of digital media. If it wins, Aereo and future services could change the way in which consumers watch TV forever. If it loses, cloud-storage services, such as DropBox, could face legal issues in the future due to copyright violations.
Regardless of the outcome, Aereo has pushed-in all of its chips: “There’s no plan B,” stated Barry Diller, the man whose company backs Aereo. “If we lose, we’re finished. I can’t see any path forward.”
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