Aereo, the Supreme Court, and the Future of TV

Analog regulations are straining to adapt to an increasingly digital world

The Supreme Court will soon reach its decision on the much-publicized American Broadcasting Companies, Inc. v. Aereo, a case many believe will have a profound effect on the way we watch television.

Aereo rents small antennas and cloud storage to subscribers, allowing them to record and playback over-the-air broadcasts through digitally enabled devices. Broadcasters feel Aereo is retransmitting copyrighted work to paying customers and, based on current copyright law, should be subject to the same retransmission fees cable and satellite companies currently pay. Aereo argues that it is simply a technology company that empowers individuals and therefore isn't engaged in the "public performance" of copyrighted works subject to these fees.

April's oral arguments gave little indication of which way the Supreme Court will rule. The decision is expected any day now.

But no matter the outcome, this case underlines just how antiquated and unresponsive our regulatory and copyright framework has become in an increasingly digital age.

"[This is] just an indication of how complex copyright law has become," says University of Maryland Professor of Law James Grimmelmann. "[Novelist] Douglas Coupland wonderfully called the computer the 'every animal' machine because it is capable of acting like anything. That is how the Internet works. It can act like a cable system. It can act like a storage device. It's TV. It's radio. It's telephone. It's telegraph.  It's everything. That means that a regulatory system that treats these different media differently is going to throw up its hands in confusion when it hits the Internet."

"Whatever happens to Aereo the industry from now on is going to be forced to move forward and innovate," says Aereo CEO Chet Kanojia. "[We] didn't cause this change. The change has been brewing since the Internet started moving bits around."

Produced by Meredith Bragg. Camera by Bragg and Jim Epstein.

About 6 minutes.

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  • Fist of Etiquette||

    Wouldn't it be easier to bring the internet to heel with regulations than to revisit and rework copyright laws to bring them up to date with the internet age and its developing technologies?

  • Army of the 12 Monkeys||

    What I found even more alarming was the opinion that over-the-air television should be done-away with, and the broadcast spectrum "reclaimed" by the government. The government already reclaimed a bunch of frequencies when they forced broadcasters into digital, and sold off the bandwidth to cell phone providers. If they are going to eliminate OTA, they need to reinstate licensing for low power television stations for public use (aka public access), since the government should not have complete control over the electromagnetic spectrum.

  • Mike M.||

    Get ready folks, Block Insane Yomomma is about to use unilateral executive authority to try to destroy the coal industry in the name of nonexistent manmade climate change.

    This move will cost an enormous number of jobs and devastate entire regions of the country. Impeach this fucking bastard already, congress.

  • ||

    In order to impeach Obumbles congress would have to A) not be on board with his agenda and B) have some balls.

    Looks like we are gonna have to ride out the rest of that POS's term.

  • LiveFreeOrDiet||

    “If it succeeds in death by regulation, we’ll all be paying a lot more money for electricity — if we can get it. Our pocketbook will be lighter, but our country will be darker.”

    I wish this were hyperbole. EPA already has regulated away coal-fired power plants in the northeast as of 1/1/15 that they know will be needed even if weather if very normal next year. Without them, blackouts could become common, or maybe even massive.

  • Mt low rider||

    I'll be waiting for this prog derp to harm actual people ...it could reset the derpitude, if we are lucky.

  • ||

    “If it succeeds in death by regulation, we’ll all be paying a lot more money for electricity — if we can get it. Our pocketbook will be lighter, but our country will be darker.”

    This applies in principle to every goddamn thing he has done since he moved into the white house.

  • MJGreen||

    “But a low-carbon, clean-energy economy can be an engine of growth for decades to come. America will build that engine. America will build the future, a future that’s cleaner, more prosperous and full of good jobs.”

    There are so many applicable Bastiat essays, I don't know which one to link.

  • VG Zaytsev||

    "Under my plan electricity rates will necessarily skyrocket".

    Well, at least that's one thing the fucker was honest about.

  • Dances-with-Trolls||

    Block Insane Yomomma

    This is the dumbest Obama-mocking nickname in existence. Please give it up.

  • BakedPenguin||

    Second.

  • waffles||

    Why can't he throw nuclear a bone? I guess he doesn't have enough cronies in the industry.

  • sarcasmic||

    Didn't his administration grant some licenses for new nuke plants recently, the first ones in like thirty years?

  • some guy||

    Haven't you heard? "Nuclear" is a scary word because of the millions (or dozens, whatever) that died due to Chernobyl and Fukushima.

  • mr simple||

    Using Executive Powers, that he just made up as King, Obama Begins His Last Big Push on Climate Policy

  • J. S. Greenfield||

    This story makes a fundamental factual mistake.

    The Copyright Act does not require retransmission fees. In fact, it actually grants cable systems a compulsory license for retransmission of broadcast television stations.

    There is no royalty for retransmission within a station's local market (as Aereo does), because the rightsholders have already been compensated for the broadcast of their works within that market. So even if Aereo were a cable system (and it qualifies, if its transmissions are actually public performances), it would be required to pay only minimum regulatory filing fees to enjoy the benefit of the statutory license.

    Retransmission fees are negotiated under the completely separate Communications Act (Title 47), as amended by the 1992 Cable Act. Retransmission fees are paid directly to broadcasters (not copyright rightsholders), independent of any copyright considerations.

    Aereo does not qualify as either an cable system or an MVPD under Title 47 definitions, and as such, even if Aereo's transmissions were public performances, that would not require Aereo to pay retransmission fees.

    The broadcasters and their supporters have intentionally conflated the issues of copyright infringement and retransmission fees. It's unfortunate that Reason has perpetuated their misleading mischaracterization of the law.

  • Army of the 12 Monkeys||

    I believe the issue is going to boil down to how the recordings are made available to the customers. Does transmitting the digital recordings outside of the metropolitan market constitute copyright infringement? Everything up to that point is simply hiring someone to operate a rented DVR with a built-in TV tuner for you. If Aereo keeps their servers within that same market, and allows remote-access by customers, I think they've won the case.

  • Acosmist||

    "But no matter the outcome, this case underlines just how antiquated and unresponsive our regulatory and copyright framework has become in an increasingly digital age"

    No, no it doesn't. If you have an anti-property ax to grind, sure.

  • sarcasmic||

    Looks like a gimmick to me. That said, I still don't understand the big deal.

  • some guy||

    This type of intellecual property is such a scam. If you voluntarily broadcast data into the world and I make a copy of it, what harm have I done to you? If I then re-broadcast that data, what harm have I done you?

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