Editorial: Friends in High Places

Broadcasters are liking their chances in the Supreme Court, and they have reason to, given the friends they have in high places on the issue of whether Aereo is a technological work-around of copyright law, or an innovative way to deliver their free TV station signals over the Internet and let them make remote copies.

Aereo had been trying to convince the White House to take its side in the case, but the solicitor general’s office last week came down squarely in the broadcasters’ camp, as did the man who wrote the book, literally, on copyright law.

In its brief, the SG’s office said Aereo was violating copyright laws and not advancing innovative distribution. That was seconded by David Nimmer, whose Nimmer on Copyright is the authoritative text on the subject. The Second Circuit Court of Appeals even cited that text in its decision suggesting Aereo would win its case. Nimmer said last week the reading of his book was the wrong one to apply to a unique situation where technology has enabled Aereo to act as a multichannel video programming distributor, and should have to abide by the specific copyright laws applied to retransmitting TV signals.

Nimmer and the SG also supported the argument that the court can rule Aereo out of bounds without invalidating the cloud storage regime. They point out that remotely accessing copyrighted content that has already been paid for, which was at the heart of the Cablevision case, would still be legal even if Aereo is not, though if Aereo is allowed to stand—as music publishers and authors told the court last week— those seeking to distribute their music through the cloud without compensation would get the same free pass to be an “artful dodger” of copyright laws.

The Supreme Court will hear oral argument in the case April 22. A decision, likely by July, will most likely affect the future of online, over-the-air and traditional pay-TV distribution of video content. Unfortunately, that oral argument will not be available for viewing by most of the public.