FYI.

This story is over 5 years old.

Tech

To Rule on Aereo, the Supreme Court Has To Figure Out What Aereo Is

Plus: A list of things that Aereo might be, as per the court transcript!
Image: Wikimedia Commons

The fight between the broadcast networks and the startup internet broadcaster Aereo made its appearance in the United States Supreme Court today, as the court began hearing arguments that have been playing out in lower courts for two years now. The decision likely won't come out until July, a date that's hotly anticipated: the court decision could have implications for cloud computing, broadcast networks, and the dream of one day cutting the cord.

The broadcasters—the owners of ABC, NBC, CBS, Fox, Univision, and others—argue that Aereo's business model violates the Copyright Act because the service broadcasting their programs over the internet constitutes “a public performance,” for which the networks are entitled to a fee.

Advertisement

Aereo argues that because each of its members has an individual, tiny antenna reserved for their own use in an Aereo facility, the service is only renting equipment for picking up publicly broadcast signals for private consumption of the content, and the company doesn't owe the networks any more than some individual who picks up the signal with a pair of rabbit-ear antenna does.

“Consumers have the right to use an antenna to access the over-the-air television,” said Aereo founder Chet Kanojia in a statement. “It is a right that should be protected and preserved and in fact, has been protected for generations by Congress.”

On the first day in the country's highest court, questions revolved around whether Aereo's practices could be described as transmitting, and if making copies for people to watch at their leisure was a reproduction rights question or a public performance one.

“Because the performance embodied in each transmission from Aereo’s equipment—the user’s playing of her recording—is available only to the individual user who created that recording, the performance is private, not public,” Aereo's lawyer David C. Frederick told ABC.

Part of the perceived problem with Aereo is that it offers a DVR-like service, where you can opt to record shows and watch them at your leisure, looking for all the world—to Justice Ruth Bader Ginsberg anyway—indistinguishable from cable from a consumer perspective.

Advertisement

But Aereo is wielding the 2008 appellate court decision in a case concerning Cablevision, which held that consumers had the right to record programming through their cable boxes. That Aereo's boxes, like the antennae, are outside of the home has no bearing on whether or not it is a public or private performance when the show is played back, according to Aereo.

Since the government first got into broadcasting regulation—way back when then-Commerce Secretary Herbert Hoover was in charge of giving out wireless broadcasting licenses—it has been trying balance business-friendliness and innovation.

Of course, Hoover was an engineer, whereas today's justices are struggling to figure out what metaphor explains Aereo the best, and how they could rule on it narrowly enough so as not strike down the growing cloud computing industry while still protecting copyrights.

Seriously, it's pretty impressive how many different ways the justices described Aereo. Here's a mostly-comprehensive list, according to official transcripts:

Part of it is certainly the justices trying to force the attorneys for both sides to pin down the case into a more specific box, which would allow for a more narrow ruling on the case. But part of the metaphor-spree seems to be that the court had occasional trouble understanding Aereo's model, and more importantly, how it would reflect on other technologies based on transmitting data en masse to individual users.

Advertisement

"And then what disturbs me on the other side is I don't understand what the decision for you or against you when I write it is going to do to all kinds of other technologies," Justice Stephen Breyer said. "I've read the briefs fairly carefully, and I'm still uncertain that I understand it well enough. That isn't your problem, but it might turn out to be."

The New York Times summarized Justice Stephen G. Breyer as saying, “what disturbs me on the other side is, I don’t understand what a decision” against Aereo “should mean for other technologies,” referring to cloud computing. And Justice Antonin Scalia once asked Frederick about Aereo being used to stream HBO—presumably a point raised because HBO has subscriber fees—which Frederick said was impossible, because HBO, being a premium cable option, isn't transmitted for free over the airwaves.

Aereo's lawyer played up this threat to cloud computing that emerges if the court defines what Aereo does as more “public” than the court-protected right of every American to record a show onto his or her Betamax player. Frederick said that the “the cloud computing industry is freaked out about this case because they've invested tens of billions of dollars on the notion that in user-specific, user-initiated copy when perceived by that person is a private performance and not a public performance…that turns them into public performers whenever they are handling content.”

But the broadcasters do have money on the line. The networks collect $3.3 billion in retransmission fees paid by cable and satellite companies, and some observers, like the New York Times' David Carr, have argued that a ruling in Aereo's favor opens the door for cable companies to “to build a similar service and skip the billions in payments to the networks.” Aereo's expansion would also make it easier for consumers to cut “the cord” and leave cable and satellite behind in favor of whatever combination of Netflix, Amazon Prime, Hulu and the networks, they want.

In an echo of appeals court judge Danny Chin—who, in a dissenting opinion, called Aereo “a Rube Goldberg-like contrivance, over engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law”—Chief Justice John Roberts kept asking Frederick if there was any purpose for all of the little antennae or if Aereo's tech was “based solely on circumventing legal prohibitions that you don’t want to comply with.”

Frederick explained how the smaller antennae were advantageous, before pointing out that that's really besides the point. “Efficiency is not a consideration under the Copyright Act,” he said.

So making Aereo look like just a more efficient way to have bunny-ears and a DVR is a pretty tack, whereas the broadcasters tried to make Aereo look like a rogue, thieving internet piracy outfit. How the law sees it, and its legacy, won't be known for another three months.