2013-14 Supreme Court Term, Part 5: American Broadcasting Companies, Inc. v. Aereo, Inc.

Part 5 of an occasional series on the recently completed Supreme Court Term detailing the most important cases (in my judgement, of course) and their likely impact. See Parts 1, 2, 3 and 4.

  • American Broadcasting Companies, Inc. v. Aereo, Inc. A 6-3 split decision, the Court (Breyer, J) held Aereo, Inc. was in violation of the Copyright Act’s Transmit Clause when it sold a service permitting its subscribers to view television programs over the internet at roughly the same time they were available over broadcast wavelengths. The argument here is technical. Aereo, Inc. used a number of broadcast receiver antennas, each leased to a specific client, to capture broadcast television and retransmit it to their subscribers over the internet. They argued, insofar as there was a separate antenna for each subscriber, they were doing no more than leasing antennas to their clients, which clients might have bought an antenna to receive the identical programming without charge. ABC argued Aereo was, in fact, unlawfully copying their programming  and providing it to their customers, in manner like to a cable company, without paying ABC the cable fees normally required by the content provider. The court agreed with ABC. Scalia, J dissented, joined by Thomas and Alito, JJ, arguing essentially Aereo was correct, and they were not “performing” the copyrighted works.

For those who haven’t been following the news on this, Aereo is a technology company who invented a way to capture broadcast TV signals and rebroadcast them over the internet to their subscribers.  They did not just put up a big antenna, copy the programming and then ship it out again. Plainly that would have been in violation of the Transmit Clause of the Copyright Act or invoke the cable fees. The dodge they dreamed up was build a whole room-full of dime-sized antennas and lease each one to a specific client. Their argument, while convoluted (that’s where attorneys live), is simplicity itself. It is perfectly lawful for any individual person to purchase an antenna  and to capture such signals normally broadcast by the TV networks for free. Having done so, they can view those programs privately. None of this is any kind of problem at all; those individuals are the intended audience of the broadcast TV networks and such use is entirely within the contemplated sphere.

Aereo, then, reasons if persons may own equipment to do so, they can also lease it. Thus they say they are not in the business of pirating intellectual content and reselling it (the ABC’s claim), but rather of leasing the requisite equipment and simplifying the process for their subscribers. The subscribers simply hit the website, check off what they want to see, and then view it over any handy internet connection from their own account with a few seconds delay for technological reasons.  Aereo has a point, IMHO. It’s hard to see much difference between that and a car service or a maid service or a nanny service or any other professional who offers to tend to some of life’s annoying details for busy people. So much so, I nearly laughed myself sick when I first read about it when the case hit the news.

Since it was such a wonderful idea, naturally, the Supremes took it away; I’m afraid this is one of the cases the forces of darkness government control won this year. If Aereo had a point above, so does Breyer in the opinion of the majority. In 1976 Congress amended the Copyright Act for the specific purpose of bringing cable TV systems under the aegis of the Act. They did so at least partly in response to the Court’s holding in Fortnightly Corp. v. United Artists Television, Inc., a decision which took Aereo’s viewpoint via CATV systems (one big antenna serving many subscribers). Breyer spends a number of pages making the same point: this is little, if any, different from CATV systems in function, despite the fact the system uses an individual antenna specifically leased to a person who has a perfect legal right to capture and use the signals; the Congress has the exclusive right to regulate copyrights (Article 1, Section 8, Clause 8); and the Congress, under the Copyright Act, has chosen to regulate the rebroadcast of copyrighted intellectual properties. All in all, it’s entirely predictable: the Congress has control of broadcast TV through regulation by the FCC and the various intellectual property laws, and they intend to keep it, and the Court is going to let them.

The dissent is another matter. I heartily recommend Scalia’s opinion for those who appreciate dripping sarcasm: “The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come” is merely a sample; it’s masterful and well worth reading. Basically, Scalia makes the same points the Court made in Fortnightly Corp. The key difference he sees between CATV systems and Aereo’s idea is CATV systems automatically copy all (relevant or carried) programming and shoot it down the pipe whether anybody’s watching it or not. Aereo’s system does not work like that. Rather, the system lies dormant until it is activated by a subscriber, and then captures the selected programming and immediately sends it to a person who could receive it for free under the terms of service of the Broadcast companies.

I incline my agreement with the dissenters. The separate antennae, IMHO, make a big difference. I can’t imagine why, if it’s lawful for an individual to own an antenna to capture such broadcasts and a set of wires or some other method of delivering the signal from the antenna to their viewing device, they can’t lease one as well, or hire a service provider to do it for them. It’s just an opinion, but I think politics has reared it’s ugly head here. The Congress, and their Big Gov allies on the political left, don’t like to relinquish control of anything they have once gathered. Protecting copyrights is a good thing, I heartily approve. But having once broadcast the copyrighted material… How many times have you heard the disclaimer “This broadcast is intended for the private use of our audience and any re-broadcast, etc.?” If the end result of the broadcast is the private use of the audience, what can it possibly matter how it got there, or on what kind of equipment the audience privately uses it? The broadcast companies have gotten into this to protect their profitability. They get fat fees from cable companies because it is expensive and inconvenient for individual subscribers to own and operate an antenna. Ask me, I’d say the broadcast companies are guilty of false advertising when they claim to make it available for free.

As for the import… hard to say. It might mean nothing to anybody but the tiny number of Aereo subscribers and stockholders; Aereo is– maybe was by now– a small company, a start-up. They were going to expand, but hadn’t yet. That won’t happen now as their business model is destroyed. But it could be important to everybody as well, which is why I have included it in this list. Nobody is sure yet, it will depend on the exact language of the controlling opinion, plus how now-unknown attorneys word briefs, but it’s at least possible it will affect the transmission of any type of copyrighted material at all over the internet. If you buy an e-book from Amazon, you have paid for a single-user license of the copyright. But does Amazon also owe the copyright owner a fee for presuming to transmit your copy to you? If you make a copy of a DVD movie you own– same gig, you bought a single-user license to the programming when you bought the DVD– and you choose to store an archival copy of your copyright– that’s perfectly lawful, too– in your cloud storage folder, does Dropbox then owe the same fee every time you decide to download it and watch your movie? It’s all moonbeams and cobwebs now, but it might turn in a frightening direction. Still worse, it might provide a hook for FCC to begin to regulate the internet. I don’t know any of that, but it bears watching.




themaskedblogger is a native born Texan, a registered voter and possessed of some minimal ability to read, write and think.

Posted in Courts
2 comments on “2013-14 Supreme Court Term, Part 5: American Broadcasting Companies, Inc. v. Aereo, Inc.
  1. […] Part 6 of an occasional series on the recently completed Supreme Court Term detailing the most important cases (in my judgement, of course) and their likely impact. See Parts 1, 2, 3, 4 and 5. […]

  2. […] most important cases (in my judgement, of course) and their likely impact. See Parts 1, 2, 3, 4,  5 and […]

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