A case being petitioned for review by the Supreme Court will, if accepted, tell us a lot about the future of broadcasting. More importantly, it will tell us a lot about the future of all the content media, and of the nation’s copyright laws generally.
The case in question concerns the business practices of an outfit called Aereo, which streams for a fee over-the-air TV programming to the company’s subscribers. Because this programming is delivered through the Internet, it is accessible when and where the subscriber wants it. Sounds good, right?
Bu there’s a hitch. Unlike cable and satellite systems, which pay the broadcasters for the right to retransmit their copyrighted programming, Aereo pays nothing. And how are they able to do this? Well, that’s the heart of the Supreme Court petition filed last month by the four big broadcast networks, ABC, CBS, NBC, and Fox.
When cable and satellite operators distribute broadcast programming to their subscribers this is deemed a “public performance,” which is why those operators have to pay the broadcast copyright holders for the privilege. When, however, an individual records a copyrighted program on his DVD this is deemed a “private performance,” and requires no compensation to the copyright holder.
Aereo’s business plan plainly exploits this public/private dichotomy by the simple device of installing tens of thousands of dime-sized antennas, each of which stream the over-the-air programming to Aereo’s subscribers individually, thereby qualifying, according to Aereo, as a private performance.
Lest you think for a minute that this is a triumph of engineering, rest assured it is not. As noted by Rod Smolla, the lawyer who filed a brief for The Media Institute in support of the petition for review: “If a picture tells a thousand words, a thousand antennas tell the picture.”
Nor is Smolla the only person who sees through this scheme. Denny Chin, an appeals court judge who was part of a panel that earlier ruled against an injunction against Aereo, wrote this in his stinging dissent:
The [Aereo] system employs thousands of individual dime-sized antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.
Because the Supreme Court agrees to review less than one percent of the cases brought before it, it’s no sure thing that Aereo will be reviewed, even though Aereo has declined to oppose the petition for review. Much may depend on the decision in another appeals court, which is considering a case concerning a company with an Aereo-like setup. If that court rules against the company, there will be a conflict between two appeals courts (the Second and Ninth circuits), something that would increase the chances that the Supreme Court would agree to review the case.
The importance of this case is not just whether broadcasters can derive revenue for their programs from third-party Internet distributors. The importance is in what it will tell us about the future of all the content industries and of copyright itself.
To put it another way, you don’t have to be a fan of broadcasting (or Hollywood, or the recording industry, etc.) to have a high regard for copyright. Like the First Amendment, copyright is enshrined in the U.S. Constitution, and in practice it is copyright that provides the incentive that leads to the creation of the content that the First Amendment protects!
Seen this way (and even acknowledging that there is always some tension between the First Amendment and copyright, usually over arguments about the reach of “fair use”), both of these concepts are not just important in their own right, they’re the opposite sides of the same coin.
Today, however, those industries that rely on copyright protection – the so-called content media like newspapers, magazines, motion pictures, recording companies, book publishers, and broadcasting – are being decimated by piracy and/or the copyright-skirting practices of Internet companies like Google.
Whether the Supreme Court reviews the case or not, Aereo won’t be the last word on the subject of copyright protection. But if Aereo, or any company, can escape paying copyright fees simply by creating a service that turns on a technological sham like Aereo’s, it’s not just content producers that will suffer; it’s the content-consuming public and copyright law generally.
The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils. A version of this article appeared in the online edition of USA Today on Dec.16, 2013.