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Aereo and the Big Picture for TV: A Lot More than Copyright

April 4, 2014

On Wednesday, Public Knowledge joined Electronic Frontier Foundation, Consumer Electronics Association, and Engine in filing a friend of the court brief in the Supreme Court supporting Aereo, a company that is giving customers the ability to view broadcast TV online. It does this by renting miniature antennas to individual users, and sending the broadcast signal they receive over the Internet to those users.

The case is being decided on an interpretation of copyright law—specifically, whether or not Aereo’s transmission of broadcast signals from individual antennas to individual users is a series of private performances, or one big public performance. Only public performances require permission from a copyright holder under the law—after all, you don’t have to get a copyright license from a broadcaster to put an antenna for your TV on another rooftop, but you would need a license to run cables from one big antenna to all of your neighbors.

But as interesting as the statutory interpretation questions can be for copyright nerds, it’s important to look at the bigger picture of what’s going on. It’s not really about paying the companies who make the programs—they get paid by broadcasters and cable companies. And the broadcasters get paid by advertisers and cable companies who retransmit their signals, and cable companies are paid by their own advertisers and subscribers. Since Aereo is only sending over-the-air broadcasts to users within those broadcasters’ footprints, no one should be losing out. The shows were, absent the vagaries of bad weather or blocking buildings or terrain, being made available to those viewers anyway, and the ads that fund them as well.

So why would broadcasters care so much? It likely has less to do with concern over someone doing any one particular thing with a signal being blasted out over the public airwaves than consolidating control over the distribution channels for TV.

Instead, look at what television looks like online. What’s there? A confused mishmash of streaming video. Pre-packaged movies and feature TV shows can be bought or subscribed to through services like Netflix, iTunes, and Hulu, but their catalogs are severely limited and are available only after a substantial delay. Some major events get streamed live, but nearly always demand that you have a cable subscription to watch the events on the Internet. So even though I buy broadband service from Comcast NBC, I couldn’t watch the 2014 Winter Olympics, since I don’t buy cable service from them.

The same sort of chicanery happens with Comcast disabling certain devices from streaming HBO Go to customers’ TVs; they want you to get content through their services, not more directly from the studio.

Broadcasters aren’t all that different from cable companies in this particular regard (I mean, leaving aside the fact that one massive cable company is also one massive broadcaster); the more ways that viewers can access their favorite programs, the less control and revenues any one particular pathway can command over them. Aereo merely represents one more way that viewers can access the over the air channels that broadcasters are already sending out for free.

Broadcasters’ priorities with regard to control versus viewership couldn’t be more clear than in a recent statement from Les Moonves of CBS, who claimed that if Aereo wins at the Supreme Court, CBS could simply cease broadcasting over the air and stream its content to viewers online. In other words, they’re willing to basically duplicate what Aereo is doing right now, and at the expense of all of the people who currently receive their programming over the air, in order to undercut a competitor that they can’t litigate out of business.

Nothing, of course, prevents broadcasters from streaming their content to viewers right now—they simply lack sufficient incentive to do this thing that lots of viewers are demanding until they face some competitive pressure.

So, writ large, the interests behind the Aereo case are more concerned about control over pipelines than they are about the state of copyright law. But it’s the power and the flexibility of copyright law that lends it to being dragged into disputes like this. Meaning that, coming out the wrong way, this case could cause harm not just to the competitive landscape of TV distribution, but seep out in unexpected ways into the Internet as a whole. 

Photo by Flickr user Joey Lax-Salinas.