Aereo Loses In Supreme Court, Deemed Illegal
techcrunch.com
techcrunch.com
"This Court recognizes one particular difference between Aereo's system and the cable systems at issue in Fortnightly and Teleprompter: The systems in those cases transmitted constantly, whereas Aereo's system remains inert until a subscriber indicates that she wants to watch a program. In other cases involving different kinds of service or technology providers, a user's involvement in the operation of the provider's equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act. But given Aereo's overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here."
So, if I understand this correctly, the Court is rejecting Aero's argument that it provides private performances because it gives users the ability to control the rented antennaes, and only transmits what the individual user requests.
I'm a little baffled by how this differs from how people use DVRs. To me, it seems like the Court is hung up on how similar the end result is to the cable providers', even though the means are different.
More specifically, the Court is hung up on how Aereo uses technology to circumvent the intent of the law. The ruling is basically saying, "Don't bother trying to follow the law as it's written if you threaten the status quo".
Not just the modern cable providers, the historical CATV analogy is much tighter. The original cable entrepreneurs served valley communities that couldn't get OTA signals. They put up giant antennas at the top of the valley and cables from there to individual houses below. The broadcast television industry tried to destroy those companies using very similar arguments as in this case, and the Supreme Court sided with the CATV companies (Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390 (1968) and Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U. S. 394 (1974))
But those decisions were a matter of statutory interpretation, not constitutional law. Such decisions are always subject to be overruled by Congress, and that's exactly what happened in 1976 with the The Copyright Act of 1976. In passing that law, Congress specifically intended to overrule the earlier Supreme Court cases. Aereo's technology might be slightly different, but if you can't run a passive cable from an antenna to a subscriber's house which is perhaps the most straightforward possible arrangement, it's hard to see how anything along these lines is going to pass muster.
It's easy enough to blame the Supreme Court and accuse them of not understanding technology, but it is Congress that specifically went out of its way to advantage broadcast companies in this way. The fault and solution lies there.
I really hope they do this. I commented on this on the other thread: https://news.ycombinator.com/item?id=7944241