YOU ARE HERE: LAT HomeCollections

The Supreme Court's struggle to grasp Aereo's tiny TV antennas

April 22, 2014|By Jon Healey
  • David Frederick, center, outside counsel with Aereo Inc., speaks to the media with Chief Executive Chet Kanojia, left, and General Counsel Brenda Cotter after the Supreme Court heard arguments in the broadcasters' copyright-infringement lawsuit against Aereo.
David Frederick, center, outside counsel with Aereo Inc., speaks to the… (Andrew Harrer / Bloomberg )

If you're comfortable with the Supreme Court resolving disputes over technology, the transcript of Tuesday's oral arguments in ABC vs. Aereo should change your mind.

Admittedly, the case is about copyrights, not circuitry. In particular, the issue focuses on whether Aereo's service violates broadcasters' exclusive rights to transmit works to the public. Yet the inner workings of Aereo's system are crucial to that issue, at least from Aereo's point of view. And the justices struggled to get past a simplistic view of the technology involved.

For example, at one point Justice Stephen G. Breyer said that unlike a rooftop TV antenna, the tiny antennas that Aereo sets up in a city could "pick up every television signal in the world and send it ... into a person's computer." That's physically impossible, not just because antennas aren't sensitive enough to detect signals from outside the local market but because the world isn't, you know, flat. "And that sounds so much like what a [cable] TV system does or what a satellite system does," Breyer continued, "that it looks as if somehow you are escaping a constraint that's imposed upon them. That's what disturbs everyone [on the court]."

Everyone outside the court should be disturbed by a question like that.

At stake here is the degree to which innovative companies are going to have to seek permission from copyright owners to enable people to do in the cloud what they can do for themselves at home. Aereo uses its tiny antennas and circuitry to let people tune in, record and stream local TV programs over the Internet. Because each antenna, recording and stream is initiated and controlled by individual users, Aereo says the online transmissions aren't public performances, they're private ones. The networks counter that if Aereo can do that without obtaining licenses, other pay-TV operators will follow suit, destroying an important revenue stream and pressuring them to abandon free over-the-air broadcasting.

Justice Sonia Sotomayor opened the session by asking the broadcasters' attorney, veteran Supreme Court litigator Paul D. Clement, why Aereo isn't simply a cable TV company. After all, she said, it has facilities that receive transmissions from broadcasters, then send the programs on to subscribers for a fee.

Clement's response was that although Aereo is indistinguishable from cable operators in some respects, it isn't one largely because the company doesn't want to be considered one. It fell to Aereo's attorney, David C. Frederick, to point out that Aereo doesn't collect TV programming and retransmit it in bulk to its subscribers, as cable operators do. Instead, it rents equipment to its subscribers, who use it to watch or record one show at a time. Nothing happens unless it's initiated by the user, he said.

To which Sotomayor responded: "I always thought ... that if I [make a copy] of a record and duplicate it a million times the way you're doing it, and I then go out and sell each of those copies to the public, then I am violating the [Copyright] Act. So why is it that you are not?"

As the question indicates, Sotomayor didn't quite catch Frederick's point about who was actually making the recordings (Aereo's subscribers) and where they were being transmitted (to themselves). Or maybe she just rejected it as sophistry. Regardless, Frederick said legality of the recordings wasn't at issue because, as the broadcasters recognized earlier in the case, the Supreme Court held in the Sony Betamax case that people have a fair-use right to record TV shows for later viewing.

The right question was the one Justice Elena Kagan eventually put to Clement: Why should copyright law treat a company that rents people a TV antenna hooked to an Internet-connected DVR different than one that sells people the functional equivalent to install at home? The answer, Clement said, was that a private performance becomes a public one when it's transmitted by a service provider from one place to another, rather than by a viewer to himself.

Clement's formula ignores the U.S. 2nd Circuit Court of Appeals' ruling in Cartoon Network vs. Cablevision, in which the appeals court ruled that a cable operator's shared DVR didn't violate the networks' copyrights. Under the 2nd Circuit's ruling, who owns the equipment and where it's located are irrelevant to determining whether a performance is public or private. Instead, the court held, what matters is whether the equipment is controlled by users, and whether their recordings and transmissions are theirs alone. If the answer to those questions is yes, then it's a private performance.

Los Angeles Times Articles