— InteractiveDay (@InteractiveDay) April 22, 2014
Today, SCOTUS will hear oral arguments for American Broadcasting Companies, Inc. v. Aereo, Inc. Amy Howe puts the case in plain English:
For just eight dollars a month, you get the ability to start watching a TV program – say, the Super Bowl – live on your iPhone while you are out of your house. When you get home, you can pick up seamlessly where you left off on your television or desktop computer. Or, you can record the entire program on a remote DVR assigned to you and watch the whole thing later on.
What could possibly be wrong with Aereo’s business model? For ABC and the rest of the broadcast television industry, pretty much everything. In their view, Aereo is blatantly violating federal copyright laws (and possibly jeopardizing the entire broadcast industry) by streaming live TV over the Internet without paying the networks for the right to do so. Aereo counters that everything it does is completely legal: the TV programs that it makes available are already broadcast for free over the public airwaves; Aereo is just making it easier and more efficient for its subscribers to watch those programs.
David Carr believes that the case could dramatically change TV:
I spent time in Hollywood last week chatting with various executives, and Aereo was described variously as “a fencing operation peddling stolen goods” and “thieves masquerading as innovators.” That’s about as friendly as it got: Aereo may be small — Mr. Diller called it “a pimple” — but it represents something mighty important. If Aereo is allowed to store and transmit signals without payment, the television industry will be profoundly reconfigured.
David Post fears that the case will modify our understanding of copyright:
What worries me about this case is its potential to make a substantial impact on some very, very basic copyright principles — the definitions, for starters, of “perform” and “performance” and “public” ad “private” and “transmit” and “work of authorship.” These couldn’t be more foundational in the copyright world; the entire edifice of copyright law is built upon reasonably settled expectations of what they mean. And, in turn, many hundreds of billions of dollars of economic activity is premised on the stability of that copyright edifice.
So I am very much hoping that the Justices look at this and say: ”What a mess!! Something has to give. What’s the least damage that we can do to this very intricate copyright system? What’s the narrowest possible holding we can find?”
Lyle Denniston also wonders about the narrowness of the ruling:
On legal interpretation, the broadcasters want the Court to use a broad-brush treatment, proceeding from the premise that the 1976 Act fully anticipated that there would be new technology, but maintained enduring principles that would continue to govern; Aereo, however, wants the Court to look at the legalities entirely through the specific details of the mechanisms it has made available to its customers and why they use them.
Those alternative approaches seem likely to make it difficult for the Court to find a middle ground between them, especially since each side has argued that it finds support in the Court’s own precedents before and after the 1976 copyright amendments.
What may be most challenging in this case, though, is for the Court to make sure that it does not write too broadly so that the result might stifle further digital-age innovation. The Justice Department’s brief on the merits suggested some of the potential risks of resolving the case more broadly than the context of Aereo’s system.
Andrew Cohen weighs in:
I think the broadcast industry will prevail in this case. I think it should prevail in this case given the language of the law. I can’t imagine four justices interpreting the Copyright Act in a way that permits the lower court’s ruling to stand. But in many ways the broadcasters already have lost. Whatever else it represents, this case is a sign that the industry can no longer control its future the way it once could. It’s a sign that technology is once again pushing up against the law. And if the history of this country teaches us anything, it is that the law cannot hold back technology for long.
But, should Aereo prevail, Issie Lapowsky expects the company won’t be the big winner:
There are likely dozens of other players in the tech and television space who have been watching Aereo’s case and who will be interested in getting in on the action. Netflix is an obvious possibility. So is Amazon. Both companies are already working to move TV online. “Once the loophole is open, it’s no longer a strategic advantage for Aereo,” says Gartner media and marketing analyst Andrew Frank. “Maybe Netflix decides they’ll build some warehouses full of antennae and add that to their offerings.”
Kanojia believes that Aereo’s intellectual property and first mover advantage would protect the company from potential competitors. But Netflix and Amazon could probably release a similar product — and fast — if they really wanted to. And this is just the sort of thing they might really want to do.
Previous Dish on Aereo here. Update from a reader:
As a show runner, someone who spent many years negotiating with (and being dictated to) by TV networks, I confess to a frisson of schadenfreude at their current predicament. It’s been apparent since the old recording industry imploded that their business model was headed for the dustbin of history.
But did they try to catch the wave? Did they try to come up with something like Aereo themselves? Of course not. And why? For the same reason the content on broadcast TV is so clearly inferior to cable: the networks are terrified of anything they haven’t seen or done before. Instead of embracing the digital revolution, they tried to pretend it didn’t exist. What will save them now is that since repeal of the fin-syn rules in the nineties, they’ve been able to own studios, content generators, which will continue to supply product for newer means of distribution. Heh. From now on the survival of the businesses formerly known as networks will depend even more heavily on people like me.