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Apr 22 2014

When technology clashes with copyright

There is an interesting case that is being heard today before the US Supreme Court in which technology and copyright laws come into conflict. It concerns a firm named Aereo that is marketing a small antenna that can be connected to your mobile device that can then pick up programming that is being broadcast over the air by the TV networks. In other words, you are no longer tethered to your TV but can watch anywhere and even record and save for later viewing.

How it works is that the company takes the broadcast signals and then relays it to you by means of a small transmitter that is matched to your individual antenna. This service charges a small monthly fee and is currently being offered in 11 cities and plans to expand to more.

The broadcast TV networks are furious, saying that Aereo is rebroadcasting their content without permission and without payment and that this violates their copyright. Aereo says that these signals are already being given away free over the air and that they are just making it more convenient for viewers to watch it like digital video recorders do, so what’s the problem?

Aereo won its case in the lower courts and broadcasters are threatening to stop over the air transmission if the Supreme Court rules against them. Amy Howe has a nice explanation of all the legal issues involved.

Let’s start with some basic principles of copyright law. Copyright law is intended to strike a balance. We want to encourage people to write books, compose music, and (among other things) produce TV shows for the public to enjoy. But at the same time, we want to provide an incentive for people to do these things. One way that copyright law does so is by giving the owner of a copyright the exclusive right to perform the work in public. So you can’t, for example, perform a copyrighted play without the owner’s permission – which will often require a fee, known as a “license.”

ABC, CBS, NBC, Fox, and other broadcasters went to court to stop Aereo from streaming their copyrighted programs to its subscribers. But the court of appeals ruled in Aereo’s favor, ruling that, because the company is providing each of its subscribers with an individual transmission of a copyrighted program, it isn’t transmitting performances to the “public”; it is just sending out many thousands of separate “private” performances. A dissenting judge sharply criticized Aereo, writing that its system was a “sham” because “there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna.”

The Supreme Court is not at its best when dealing with modern technology so it is anybody’s guess how this will turn out.

11 comments

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  1. 1
    Chiroptera

    Am I reading this correctly? The problem is that this service goes through a third party before it gets to your phone? But if I were to take a real TV (with a batter pack, or a TV tuner connected to my laptop or tablet), set it on the exact same park bench, that would be ok?

    So the main thing going on here is that a third party is enabling a larger audience to watch the broadcasters’ content (and the same ads) with no extra cost to the broadcasters, and this is creating a problem for them?

    I feel like I must be missing some key point. Or is this one more example where our financial and managerial elite shows they really have no concept on how to make money?

  2. 2
    kathleenmcnamara

    @Chiroptera
    This is just speculation on my part, based on my understanding of how network TV broadcasters make money, so take it for what it’s worth. TV broadcasters make money because of ads, and if everyone is getting the programming directly from them, they know how many watch, and can charge the advertisers accordingly. If it goes through a third party, it may be more difficult or impossible for the broadcasters to account for those viewers and make money off of them. So this Aereo service makes money (via the monthly fee) but the broadcasters might not.

  3. 3
    Marshall

    “There is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna.”

    Since when has a court decision ruled that someone is guilty because “there is a better way of doing it that is illegal”?

    By this logic, subscribing to HBO GO or netflix is illegal, but I can get all the netflix content faster, more easily, and in higher quality for free via illegal means.

  4. 4
    Marshall

    Sorry, wish I could edit my comment: “**because** I can get all the Netflix…”

  5. 5
    Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    The Supreme Court is not at its best when dealing with modern technology so it is anybody’s guess how this will turn out.

    I guess that the fact that broadcasters have more money than Aereo will somehow figure into the deliberation and analysis.

    In the meantime, you could always cite INS v AP.

    It’s not a perfect analog, but I don’t know of a better.

  6. 6
    Mano Singham

    @Chiroptera,

    I think (but am not sure) that this is the tricky copyright issue, that you can take your TV to the park bench and watch but if you make it into a ‘public performance’ that is open to all and, worse, charge people to come and watch it, then you would be violating their copyright.

    The broadcasters are saying that you are making money off their content without giving them their cut.

  7. 7
    Jockaira

    The extra antenna turns your mobile devce into another TV set. If previous rulings and custom have forced TV set manufacturers to pay some sort of licensing fee to the broadcasters for each set then I could see their point, but Aereo is providing additional venue to the broadcasters and their advertisers at no cost to them.

    My personal opinion is that the broadcasters want the whole pie (even when someone else cooked it) without contributing any of the ingredients or any of the labor in cooking it. This boils down to the broadcasters having more lawyers and a bigger war chest than Aereo, and possibly more greed.

    As for the argument that broadcasters are being denied revenue by Aereo’s unpaid provision of broadcast content, this can be remedied easily by including Aereo’s antenna-user base in Audit Bureau of Circulation figures.

  8. 8
    John Horstman

    And none of this would matter in the first place if mobile data charges weren’t absurdly high and broadcasters had solid internet streaming service, as Aereo wouldn’t even be a thing anyone needed or wanted.

  9. 9
    Jenora Feuer

    @John Horstman:
    I suspect part of this is that some broadcasters DO sell internet streaming service; at least, here in Canada all three of the major cell phone providers (Rogers, Bell, and Telus) each have their own services for digitally streaming the current TV ‘broadcast’ to your cell phone as well. (Rogers started as a TV cable company, so no big surprise there. Bell’s parent company owns several channels, and has been doing satellite TV for years.)

    So at least some of this may be that the networks want to be running their own services (or at least have contracted services where the local provider such as Comcast are paying them to reroute the signals) and don’t want some third party to be able to get away with doing what they want to do without them getting paid in the process.

    So it’s rent-seeking, pure and simple.

  10. 10
    moarscienceplz

    It concerns a firm named Aereo that is marketing a small antenna that can be connected to your mobile device that can then pick up programming that is being broadcast over the air by the TV networks. In other words, you are no longer tethered to your TV but can watch anywhere and even record and save for later viewing.

    IANAL, but I am pretty sure this is not the issue being disputed.
    This has nothing to do with being mobile. The same issue would apply to fixed TVs in your house using Aereo.

    Back in the olden days, you got your TV signal from an antenna only, and the TV station and the networks shared money from ads and that was that. Then cable came along and they used a single antenna to collect your local NBC station (for example) and send it to all their customers. That was no big deal, it just meant that the NBC station got a few more eyeballs that they could try to raise their ad costs for.
    However, (dun, dun, DUN), the cable companies started carrying non-broadcast channels, too. And paying these channels for the right to their content. As cable subscriptions became a bigger percentage of the viewing audience, broadcasters wanted a slice of that pie as well.
    I am not sure if broadcast channels ever got direct money from the cable companies, but they did get “bundling” rights, i.e., if Comcast wants to distribute NBC content to their customers, they must also offer CNBC and MSNBC, and do other things that benefit the network.
    Now comes the next wrinkle: Because of the historical precedent of free antenna TV, when digital TV was mandated by Congress, a rider was included to require historical broadcast stations to continue to offer over-the-air signals for free to people using their own antennas. The intent was to allow ordinary people who had not wanted cable subscriptions to continue their TV access as it had always been.
    SO, Aereo, by providing an individual antenna for each of their subscribers, is trying to thread the needle between individuals getting some channels for free, and cable companies offering that content to many subscribers but with strings attached due to the copyrights of the content providers.
    THAT (I think) is what is the issue before the SCOTUS is.

  11. 11
    moarscienceplz

    I foresee a misunderstanding that I will try to head off by expanding one of my sentences:

    SO, Aereo, by providing an individual antenna for each of their subscribers that resides at Aereo’s offices and is owned and maintained by Aereo, is trying to thread the needle between individuals getting some channels for free, and cable companies offering that content to many subscribers but with strings attached due to the copyrights of the content providers.

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