copyright question Dear Doc:

Ever since you wrote about Aereo, the company with bazillions of tiny TV antennas and video recorders, I have been waiting for them to come to my town, so that I could get a decent television picture (no more of that digital BRAAAAP every 16 seconds unless I stand next to the TV holding up the antenna like some version of Lady Liberty!) What’s this I hear about six old folks deciding to shut down this wonderful service?

My Arm Is Getting Really Tired


On June 25, by a 6-3 majority, the Supreme Court decided that Aereo’s service violated the copyrights of the broadcasters. Now, I have to say that the Doc is having a hard time understanding this ruling. As I wrote in a past article, it seemed under the decision in the Sony Betamax case, that Aereo was just doing the same thing as having a videotape recorder: allowing a consumer to receive a free, over-the-air broadcast using an antenna, recording it, and playing it back later for herself. The difference was the location of the antenna, recorder, and screen. In 1976, the antenna was on your roof, connected by a 50′ wire to the recorder in your den, which was then connected by a 10′ wire to your TV. For Aereo, the antennas were on a roof somewhere (but not yours), connected to the recorder by the Internet, which was connected to your screen (TV, computer, tablet, or smart phone) also by the Internet. Like phones (which used to use long wires, and now use the Internet) and faxes (same), and movie rentals (your car going to Blockbuster, now Netflix over the Internet)… well, you see where this is going.

Nope! Not so fast. The grandmas and grandpas on our Supreme Court have just stepped onto the porch and yelled at Aereo to stay off their lawns. The majority expressly said that because Aereo’s system appears to be similar to a cable television system, that’s good enough. Never mind that the system does nothing until a subscriber “tunes” in a program, and never mind that each antenna and recording is individual and private. If it looks like a duck…shut it down.

As the Court said, “why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. … Why would a subscriber who wishes to watch a television show care much whether images and sounds are delivered to his screen via a large multisubscriber antenna or one small dedicated antenna, whether they arrive instantaneously or after a few seconds’ delay, or whether they are transmitted directly or after a personal copy is made?”

The three dissenting justices think that these things do matter. They term the majority’s approach “Guilt By Resemblance” but as they are the minority, the public is left to wonder what will become of Aereo. The company’s founder, Barry Diller, who also started the Fox Network, said that it’s, “Game Over”.  Score another one for big business.

One thing, however, is true: more and more people are “cutting the cord” and refusing to subscribe to cable television services. The next few years will be bumpy, but in the end, innovative services like Aereo are likely to prevail. Broadcast television started out as a public trust, using the public airwaves. Anyone was free to receive the signals. Broadcast television, operated in the public interest is dying. That seems to be fine with the cable companies. It seems to be fine with the FCC. The Doc likes a good book, anyway.

Interested in innovating new services? Talk to the attorneys at LW&H. They receive, store, and respond, without engaging in unauthorized public performances.

— Lawrence A. Husick, Esq.