rabbit earsImagine that you live in an apartment in a large city, and that you don’t want to have cable television.  You used to have “rabbit ears” on your television, but once the analog transmitters went off the air, you found that your apartment faces the wrong way, and now all you get on your set is frozen, torn images and a buzzing sound.  You could try to hoist your own antenna to the roof to get a clear signal, but a new company called AereoTV offers you a better way.  For a small charge (about $7/mo. including DVR functions) Aereo will rent you two Internet-connected antennas on their building that you can use to receive over-the-air broadcasts from local stations to be viewed on your computer, iPad, AppleTV, Roku, or any other system.  Sounds great, right?

Well, ABC, Fox, Univision, Disney, CBS, NBC, PBS (PBS!!!) and other companies sued Aereo for copyright infringement, claiming that they are owed license fees. They all asked for an injunction to shut down Aereo until there’s a trial, but the court refused that demand. The media companies appealed to the Second Circuit (Appeal 12-2786-cv.) Now the Electronic Frontier Foundation, Public Knowledge and the Consumer Electronics Association have filed “friend of the court” briefs siding with Aereo, and asking the court to protect consumers’ rights.

The crux of the argument in this case boils down to a fundamental shift in copyright law over the past twenty years. Media companies have argued, both in court and in Congress, their view that if a creative work has economic value, then there must be a legal right to control that value.  This “if value, then right” approach goes against the history and rationale of our copyright law, which was created by the drafters of the Constitution to “promote the progress of science and the useful arts.”  Our copyright law creates legal rights to encourage the creation of works of art, literature, film, software, and many other types of what we copyright attorneys call “works”.

In a careful balance between the right of the public and those of the creator, Congress determined that copyright holders may control public performances (and viewing a television program is called a performance, for these purposes) but not private ones.  That is why the owner of a sports bar must be licensed to show the same football game that you’re allowed to watch at home, for free, even if you invite 50 of your closest friends to watch with you, and serve them the same beer that they buy at the bar. In the Aereo case, the media companies are trying to control what they broadcast after it is received.  That is why the EFF and other amici have jumped in to defend Aereo – they are defending the public’s right to private viewing.

The brief filed by the EFF asks the court to compare the following ways of viewing a television program:
* Watching broadcast TV from the living room with a ‘rabbit ears’ antenna;
* Watching broadcast TV from the living room with a roof-mounted antenna;
* Watching broadcast TV on a bus using a handheld TV receiver;
* Watching broadcast TV received by a roof-mounted antenna at the customer’s home, which is then sent over the Internet or a home network from a device in the home to a handheld device.
* Adding a time-shift to any of these activities by recording and playing back a personal copy of a TV program.
* Adding pause, slow-motion, and rewind capabilities to otherwise “real-time” TV viewing through use of a recording.

Each of these is a lawful way to watch television, and the only differences are in the length and type of wire between the antenna and the display (using the Internet as a wire, in the case of a device like a Slingbox or EyeTV.)

Right now, Aereo only operates in New York City.  Provided that this startup company is not crushed by the media giants, and provided that Congress does not change the copyright law to make Aereo’s business illegal (don’t count on it – after all, Disney bought extra copyright years for Mickey Mouse with its influence over the late Sonny Bono when he was a Representative) you may some day be able to watch local television stations anywhere in the world by renting an antenna in a far-away city.

— Lawrence Husick, Esq.