The Supreme Court of the United States has ruled against Aereo today, in AMERICAN BROADCASTING COS., INC., ET AL. v. AEREO, INC., FKA BAMBOOM LABS, INC. [Reference LINK.] What does this mean exactly? The death of Aereo? Probably not entirely – it seems that Aereo is run by some pretty smart folks, with interesting business alliances. It will mean a shift in business plan, however.
Here’s what Aereo CEO, Chet Kanojia had to say: “Today’s decision by the United States Supreme Court is a massive setback for the American consumer. We’ve said all along that we worked diligently to create a technology that complies with the law, but today’s decision clearly states that how the technology works does not matter. This sends a chilling message to the technology industry. It is troubling that the Court states in its decision that, ‘to the extent commercial actors or other interested entities may be concerned with the relationship between the development and use of such technologies and the Copyright Act, they are of course free to seek action from Congress.’ (Majority, page 17)That begs the question: Are we moving towards a permission-based system for technology innovation?” Read more HERE.
Maybe yes. Maybe no. SCOTUS – or, at least the 6 Justices of the majority – ruled that Aereo is effectively a cable TV system. Justice Breyer, writing for the majority says on page 9, “We recognize, and Aereo and the dissent emphasize, one particular difference between Aereo’s system and thecable systems at issue in Fortnightly and Teleprompter. The systems in those cases transmitted constantly; theysent continuous programming to each subscriber’s television set. In contrast, Aereo’s system remains inert until a subscriber indicates that she wants to watch a program.Only at that moment, in automatic response to the subscriber’s request, does Aereo’s system activate an antenna and begin to transmit the requested program.
“This is a critical difference, says the dissent. It means that Aereo’s subscribers, not Aereo, “selec[t] the copyrighted content” that is “perform[ed],” post, at 4 (opinion of SCALIA, J.), and for that reason they, not Aereo, “transmit”the performance. Aereo is thus like “a copy shop that provides its patrons with a library card.” Post, at 5. A copy shop is not directly liable whenever a patron uses the shop’s machines to “reproduce” copyrighted materials found in that library. See §106(1) (“exclusive righ[t] . . . to reproduce the copyrighted work”). And by the same token, Aereo should not be directly liable whenever its patrons use its equipment to “transmit” copyrighted television programs to their screens.”
Broadcast antenna from wikimedia; click for creative commons attirbution.
Continuing, “In our view, however, the dissent’s copy shop argument,in whatever form, makes too much out of too little. Given Aereo’s overwhelming likeness to the cable companiestargeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here.” So essentially, Aereo is a cable company? Very well; but in it’s opinion, SCOTUS effectively lays out a roadmap for Aereo to overcome this ruling – and not just by passing legislation, which SCOTUS mentions.
Early days for the post-ruling Aereo. …Meanwhile, we’ll just have to go back to our over-the-air HD antennas….
A “blow to the Internet”, as CNN says below? Naaahhh… but stay tuned.