On Aereo, Supreme Court Needs to Get with the Cloud


There are some good thoughts from Carl Ford on the Supreme Court Aereo ruling which says the company cannot transmit content freely received over public airwaves over the internet while also providing a DVR service and charging customers. Carl argues that the Supreme Court lost track of the public good regarding this case but I would argue that that is not the job of the court. Instead, I would make the point that if I were to come to your house and install a digital TV antenna, DVR and Slingbox I would effectively be giving you what Aereo does. If I were to charge monthly for the equipment, would this not be providing the same service Aero does? And, as far as I can tell, it is legal to install all this equipment and charge monthly for it. Why, is it illegal to do this in a central location?

This is the same argument Cablevision made to the Second Circuit’s Court of Appeals when it put its DVRs in the cloud and subsequently won the case case. ARS Technica had a good article on the matter at the time. Here is an excerpt:

There’s little doubt that the copies that end up in the users’ storage space are copyrighted material, but the question here revolves around who “owns” that copy. The court notes that the hardware is provided by Cablevision but used by others to make the copies, and it says that “mere ownership” of the hardware does not establish liability.

Because those copies are made at the direction of the users, and have to be arranged in advance of Cablevision’s broadcasts, the court held that these copies were essentially controlled by the user. “We are not inclined to say that Cablevision, rather than the user, ‘does’ the copying produced by the RS-DVR system,” the court decided.

The final point at issue was whether playing the stored file constituted an unauthorized public performance of it. The Appeals Court focused on the transmit clause of the Copyright Act, writing, “Although the transmit clause is not a model of clarity, we believe that when Congress speaks of transmitting a performance to the public, it refers to the performance created by the act of transmission.”

Since that transmission is destined for the viewer who recorded it in the first place, it doesn’t run afoul of the rules governing public performances.


It seems to me the Supreme Court got this one wrong. If we go back to Carl’s point about “public good,” it is worth pointing out these public airwaves were made available for broadcasters to use… The internet today is an extension of these radio frequencies and the government needs to adjust. To that end, Aereo made a plea yesterday to its members to send letters to politicians so as to get the service reinstated. If you agree, you should consider doing so.

If you want to learn more, the company has a site full of information at protectmyantenna.org.

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