But Aereo is also unlike traditional cable systems in a variety of ways the court found insignificant. Among other things, Aereo captures the broadcast signals with many tiny antennas, each one “dedicated” to a particular subscriber, rather than with one large antenna. As a result, for hundreds of Aereo subscribers to watch Modern Family simultaneously, Aereo has to tune hundreds of its antennas to ABC and retransmit the signal hundreds of times, each to a discrete viewer (a “one-to-one” system). Comcast can simply grab the signal and then retransmit it to those hundreds of customers (a “one-to-many” system). And Aereo’s system does not send continuous programming—it requires a subscriber to indicate that she wants to watch a program, and only then is an antenna activated and the signal retransmitted.
To the three justices who dissented, that last feature—the ability of viewers to select the content for retransmission—meant that the viewers, and not Aereo, “transmit” the performance, and that the performance was therefore private and not public. But not for the majority. This “sole technological difference between Aereo and traditional cable companies” does not make a difference, because viewers of traditional cable systems also could select their programming by turning the knob on their television set.
What about the fact that an Aereo subscriber receives broadcast signals through a dedicated antenna, so that the content Aereo streams goes to a single subscriber? Here the court puts its unwillingness to engage technological detail into high relief:
Viewed in terms of Congress’ regulatory objectives, 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. They do not render Aereo’s commercial objective any different from that of cable companies. Nor do they significantly alter the viewing experience of Aereo’s subscribers.
The transmission using user-specific copies is a technological distinction without a difference.
It would be one thing if the consequence of this approach were simply to block Aereo from offering its services. That would be a loss to consumers who don’t want to pay $150 a month for cable subscriptions, but at least the damage might be contained. Unfortunately, the problem is bigger than that, for in glossing over technological details, the opinion potentially implicates a wide range of other services. What about Dropbox and other cloud computing services, for example, all of which use their own equipment to retransmit what they receive to their customers, often transmitting many user-specific copies of the same works? How do those avoid liability? Not to worry, says the court, those technologies might be different. Why? Because cable system.
The most obvious way to insulate many of the cloud computing technologies would be to hold, as the dissent suggested, that a party does not infringe when it “does nothing more than operate an automated, user-controlled system.” But that is apparently not the rule, because it would have insulated Aereo from liability, too. Thus, while the court assures us that user control over a system might, in some cases, make a difference, it gives us no guidance as to when that might be true, except to say that it isn’t true here.
Similarly lame was the court’s attempt to differentiate Aereo’s service from other possible systems, on the grounds that Aereo’s customers have no pre-existing right to the underlying works (presumably meant to differentiate something like a storage locker into which you might place copies of songs that you already own). But it is a mystery when and how this would matter to the question of public performance, since ownership of a legitimate copy of a work doesn’t ordinarily entail the right to perform the work. Perhaps the court is implying here that owners of legitimate copies are entitled (as a matter of fair use?) to reproduce those works and access them through some other mechanism. If that is what the court meant, that would be a big deal, because it would legitimize space shifting. But the court gives us no real insight into its thinking here, and I doubt lower courts will think this is sufficient basis for such a significant conclusion.
In the end, Justice Antonin Scalia is right that this is just an example of guilt by resemblance. But because the court sees that resemblance at such a high level of generality, its decision has the potential to sow a lot of mischief. One can hope that lower courts understand the spirit of this decision and implement a sort of “Are you a cable system?” rule rather than taking seriously the court’s interpretation of the transmit clause. But I am not optimistic on this front.
This article is part of Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.