Supreme Court rules against Aereo

The U.S. Supreme Court has ruled against Aereo, the service that claimed to offer a cloud-like individual TV antenna to each of its subscribers, allowing them to stream over-the-air television broadcasts to their computers or mobile devices. Aereo claimed it should be exempt from retransmission fees that cable companies pay to carry over-the-air broadcast channels.

The ruling, although not the one I would have preferred, went the way I had expected.

At issue is the Copyright Act of 1976, which restricted the ability of community antenna TV (CATV) companies to transmit copyrighted material.

“Because Aereo's activities are substantially similar to those of the CATV companies that Congress amended the act to reach, Aereo is not simply an equipment provider,” the Court wrote. “Aereo sells a service that allows subscribers to watch television programs, many of which are copyrighted, virtually as they are being broadcast. Aereo uses its own equipment, housed in a centralized warehouse, outside of its users' homes.”

The Court added that “behind the scenes technological differences do not distinguish Aereo's system from cable systems….”

Various cloud and related technologies had feared a ruling adverse to Aereo. But the Court noted, “Given the limited nature of this holding, the Court does not believe its decision will discourage the emergence or use of different kinds of technologies”—thereby affirming my prediction that the Court would craft a narrow finding against Aereo.

Justice Brayer delivered the opinion. Justices Roberts, Kennedy, Ginsburg, Sotomayor, and Kagan concurred.

Justices Scalia, Thomas, and Alito dissented. In the dissent, Justice Scalia wrote, “Aereo…operates an automated system that allows subscribers to receive, on Internet-connected devices, programs that they select, including the Networks'' copyright programs. The Networks sued Aereo for several types of copyright infringement, but we are here concerned with a single claim: that Aereo violates the Networks' 'exclusive right' to 'perform' their programs 'publically'…. That claim fails at the very outset because Aereo doesn't 'perform' at all. The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard ('looks-like-cable-TV) that will sow confusion for years to come.”

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