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Supreme Court Debates Aereo's Fate

Justices seemed to be looking for a way ban Aereo without causing collateral damage to cloud computing.

blur geographic boundaries between public and private space and when software blurs the distinction between individual action and the action of an agent doing the individual's bidding. Is the consumer acting through Aereo's equipment or is Aereo responsible?

As Justice Kagan observed, "If Aereo has the hardware in its warehouse as opposed to Aereo selling the hardware to the particular end user, that is going to make all the difference in the world as to whether we have a public performance or not a public performance."

Aereo claims, and the Second Circuit Court agreed, that the performance it transmits is private, like Cablevision's cloud-based DVR. But Cablevision argues otherwise, characterizing Aereo's mini-antennas as an intermediate step in a public performance. What's more, the firm argues, Aereo's subscribers "have no fair use right to make copies merely so they can receive programming over an unlicensed television delivery service."

In a phone interview, Bruce Ewing, a partner in the New York office of Dorsey & Whitney, says he found it unusual that the core legal issue -- the definition of a public performance with regard to the Copyright Act -- wasn't adequately addressed by any of the justices. The legal issue, Ewing says, has been superseded by practical concerns about the consequences to technological innovation and the cloud computing industry if Aereo's approach is found unlawful.

"I think there is a struggle going on among those who spoke... the tone of their questions suggested they are not fond of Aereo's system," he says. "That's clearly not good for Aereo. On the other hand, they don't want to issue a ruling that stifles innovation or would give rise of other lawsuits." He says he doubts that the Supreme Court will overturn the 2008 Cablevision ruling. He also says that he expects the Court will rule against Aereo in the narrowest possible way.

That would minimize the collateral damage to the cloud-computing industry, but it would shirk the more difficult task of reconciling today's technology with the more limited possibilities contemplated by the 1976 Copyright Act.

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Thomas Claburn has been writing about business and technology since 1996, for publications such as New Architect, PC Computing, InformationWeek, Salon, Wired, and Ziff Davis Smart Business. Before that, he worked in film and television, having earned a not particularly useful ... View Full Bio

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Thomas Claburn
Thomas Claburn,
User Rank: Author
4/24/2014 | 5:37:04 PM
Re: A decade since the Music industry digital transition, and the television industry still doesn't get it?
>My advice to the television industry: strike now while the iron is still hot and go digital, full on, all the way. 


That's good advice. The media companies not doing this will probably end up being bought in fire sale by some YouTube production company a decade hence.
User Rank: Apprentice
4/24/2014 | 5:02:32 PM
A decade since the Music industry digital transition, and the television industry still doesn't get it?

We could argue the merits of both sides of this case down the finest of details, but that all seems so trivial in the big picture. It seems that the television industry is just trying to stave off the inevitable, a digital revolution.

Other forms of media have struggled against it at first. Newspaper, magazine, book publishers, music and movie industries, eventually and reluctantly accepted the digital format as if it was some sort of 'necessary evil'. Unfortunately for them, they truly lost out on many things, not just the digital 'battle'. They lost credibility with consumers, untold expenses in court costs, and multitudes more in lost revenue from missed opportunity.

My advice to the television industry: strike now while the iron is still hot and go digital, full on, all the way. Many years of missed opportunity have already elapsed, yet the window of opportunity is still open. Take from the lessons learned by other media industries, turn out your deep pockets, invest in and fully embrace the digital transition, and get ready. Your subsciber base will expand beyond anyone with a tv and a cable box to nearly everyone on the planet with a smart phone, tablet or computer.

Thomas Claburn
Thomas Claburn,
User Rank: Author
4/23/2014 | 2:51:13 PM
Re: Content
But is Aereo really redistributing TV content? If it's leasing antennas to subscribers, the subscribers are pulling the content from the public airwaves and storing it in Aereo's cloud service. Would it be any different if Aereo's antennas were on customers' houses? 
User Rank: Ninja
4/23/2014 | 1:22:05 PM
I think that the biggest differentiator here is that Aereo is piping content that they don't have the right to redistribute. With cloud computing, sure, the hardware is being provided by someone else. A third party. But that third party isn't actively trying to circumvent content restrictions.

I believe that most terms of service make clear that ownership of data is the user's although a provider can enforce copyright or other violations if it needs to.
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