Aereo is a new technology that assigns each of its subscribers a tiny antenna, about the size of a dime, that can access over-the-air TV signals - that is, the networks and TV stations. It also offers a virtual DVR so you can record and stream the video back to your TV or any mobile device. The broadcasters claim Aereo is stealing copyrighted programming, not paying retransmission fees and, if Aereo wins the case, the networks threaten to stop broadcasting.
"Every time we have these new technologies, there is a similar rhetoric that we encounter," said USD law professor Orly Lobel.
Early on, television signals were picked up by a roof-top antenna or rabbit ears. Then the signal came through cable TV. Because it was no longer accessed from an antenna, it was considered to be a retransmission, subject to fees by the copyright owner. The copyright law defines it as a public performance; Aereo says it's not retransmitting, it's merely pulling the signal out of the air. Professor Lobel says the customer is in control and makes all the decisions.
"I think they are right, that is not a public performance. That's just the language of the copyright act, where the fight will be."
Similar claims were made when the VCR was introduced - the same for cable's DVR. Neither violated copyright law. Now, Aereo is being challenged, and the broadcasters want the court to validate their business model.
"First of all, the claim that a new technology disrupts a business model is not a legal claim."
Lobel says this is just another example of the broadcasters crying wolf, saying it will severely damage their business.
"If we allow this to stand, the sky will fall. No more content production, we will not be able to capture whatever investment we put into developing news, and series, and we'll just have to do something different. Maybe we'll all go from broadcasting to cable."
Chief Justice Roberts' concern was why Aereo needed thousands of antennas rather than just one - suggesting it was a way around the copyright law. Others said consumers always had a right to have an antenna no matter where it's placed, on the roof or remotely in a server. The networks have been allowed to use the public airwaves as long as they provide their content for free. If Aereo wins and the networks decide to go the cable route, those who can't afford cable may not get news and information. And that's a problem.
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