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26 Jun 2014
Aereo is (was?) a system with a large array of tiny TV antennas, each of which is assigned to a customer who can pick a channel and record it on a remote DVR system and/or stream it through the Internet. TV networks claimed they had to pay for retransmission like a CATV system. The Supreme Court decided yesterday in the networks' favor.
I'm not a constitutional law scholar, but I play one on the net, so ...
In 1968 the court ruled that CATV did not "perform" TV programs when they picked them up with a shared antenna and distributed them to customers, and hence did not make an infringing public performance. When Congress rewrote the copyright act in 1976, one of the major changes reversed that and added the complex set of retransmission rules we have now. Despite the gimmicky technology, Aereo is clearly doing what cable systems do and is subject to the same rules. They wave their hands saying don't worry, this doesn't apply to cloud storage and stuff like that.
Scalia wrote a rootin' tootin' dissent, saying that the court and everyone else will regret their newly invented "looks-like-cable-TV" (his phrase) standard. There is already a bright line to decide what's a public performance, which is who selects the content. In a CATV system, the system operator chooses the channels and delivers them all to the subscribers, a public performance. With Aereo, each subscriber individually chooses which show to watch, a private performance. Congress doubtless did not contemplate anything like Aereo, but it's not the court's job to plug loopholes. Congress can do that.
He agrees that Aereo smells bad, and notes that had the court seen things his way, there are other copyright theories beyond public performance under which they might fail back in the trial court, e.g., various sorts of secondary liability.
Now, he predicts, there will be endless uncertainty trying to figure out what "looks-like-cable-TV" means in practice. For starters, the justices agree that the few seconds by which Aereo delays the programs does not count as time shifting, but what if Aereo simply adjusted it so you couldn't watch your show until it was over. Existing case law says remote DVRs are legal, after all.
I have to agree with Scalia; this decision opens a can of worms.
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