And now the waiting begins. Broadcasters last week made their best case for why Aereo is not an innovative technological solution to the age-old problem of how viewers get over-the-air TV. Oh, that’s right, it actually isn’t an age-old problem. Supreme Court justices are expected to rule by early summer.
Broadcasters appeared to have a potential ally in Chief Justice John Roberts in the argument that Aereo is what is traditionally known as a Rube Goldberg contraption. In oral arguments last week, Roberts continually pressed Aereo on what possible justification there was for its use of thousands of mini-antennas, other than to circumvent copyright laws. Aereo’s lawyer countered it was trying to recreate the consumer experience and tried to wed Aereo to cloud storage by saying it also helped with scaling up the service. Roberts seemed unconvinced.
This is no slam-dunk for broadcasters, however. Some justices, particularly Stephen Breyer and Elena Kagan, were clearly struggling with the impact of a ruling against Aereo on cloud computing. Breyer asked broadcast lawyers how he could write a decision that would not rain on “the cloud,” which he suggested made him nervous. But that also suggested he might be looking for a way to back broadcasters.
The Obama administration supports broadcasters, and argues with them that cloud storage access can survive a decision that Aereo is infringing copyright.
Trust that we like innovation as much as the next editorial page, and we often celebrate it. But we have a hard time believing that Aereo’s mini-antenna set-up and remote DVR functionality—making it, in Aereo’s view, just like the Cablevision remote DVRs upheld by the courts—is all about the customer experience and scalability, and not a technological gerrymandering to avoid the law, as Roberts suggested.
If it walks and quacks like a distribution service, it probably is. If that is the case, then the Supreme Court should send a signal that the wonders of technology should not trump copyright protections for content.
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