ABC v. Aereo, which the Supreme Court decided on Wednesday, is a lesson in the power and limits of analogy. Aereo developed a system that allows customers to watch free, over-the-air television broadcasts over the Internet. Specifically, customers can go to Aereo’s website and select the programming they wish to view, at which point Aereo will tune a tiny, dedicated antenna to the relevant station, capture the signal, and retransmit the signal to the particular customer who requested it. That customer can then watch the program on any networked device.
ABC didn’t like this system because it allowed consumers to unbundle broadcast television, threatening the many millions of dollars broadcasters receive from cable companies for the right to carry over-the-air programming. It therefore claimed that Aereo infringed the public performance right, specifically under the “transmit clause,” which treats transmissions of a work to “the public” as public performances.
(Update, June 26, 2014: Disclosure: I was a signatory on an amicus brief in the case authored by law professors David Post and James Grimmelmann, some of which was adopted by the dissent.)
There are at least two ways to view Aereo’s system. On one view, Aereo is simply supplying a more convenient and technologically sophisticated substitute for putting an antenna on your roof. Yes, delivering the content to the customer who ordered it requires a retransmission of the content (from the mini-antenna to the customer’s device), but the programming streamed to each customer comes from her own personal copy, made from a device devoted particularly to her. It is therefore no different than the delivery of content from the antenna on your roof to the television set in your house.
If you took this view, you would, like the 2nd Circuit Court of Appeals, find it important that each transmission came from a dedicated copy created at the direction of a user. And that technological detail would allow you to conclude that the Aereo subscriber, and not Aereo itself, made the performance, or at least that any such performance was not made “to the public.”
Alternatively, you could see Aereo’s system as a Rube Goldberg device intended to exploit a legal technicality so as to avoid paying the licensing fees traditional cable companies pay to retransmit broadcast programming. On this view, the fact that the data sent to each subscriber comes from a dedicated antenna is a technical detail that ought to make no difference. Viewers don’t know and don’t care how things work behind the curtain—they just want to receive the content, and Aereo gains an unfair advantage over cable systems that provide the same content because it is able to avoid paying the broadcasters for their content.
The choice of framing powerfully influences everything else one sees about this case. But one important difference between these two views reflects a more general distinction in the ways courts treat new technologies in copyright cases. In some cases, courts draw their analogies in nontechnical terms, trying to determine whether the new technology seems to have the same real-world effects as some other technology for which the legal rules seem clear. These courts would be inclined to treat the DVR the same as the VCR without getting into technical distinctions about the ways those technologies work. In other cases, courts determine exactly how the device or system works and then make legal judgments at this technical level.
The virtue of the former approach is that it avoids entangling courts in technological details and thereby limits the extent to which they might be accused of dictating technological design. But there is also a real risk in this approach that a court will draw its analogies too generally and then be unable to distinguish a variety of other technologies not directly implicated in the case. That risk is on full display in Aereo, in which the court was blinkered by its belief that Aereo’s streaming system was just like a cable system—which puts cloud computing technologies with similar features at great risk.
Justice Sonia Sotomayor’s very first question at oral argument was why Aereo isn’t considered a cable system. From Sotomayor’s perspective, Aereo fit the statutory definition since it “receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service.” But, the lawyers on both sides insisted, everyone agreed that Aereo is not a cable system. Things would be too complicated if it were—among other things, Aereo’s retransmissions might be subject to statutory licensing—and no one wanted to open that can of worms.
So the court did not hold that Aereo’s system is a cable system, but it could not shake the sense that it is very much like a cable system, and for that reason it should not get to retransmit broadcast signals for free. And at a high level of generality, Aereo’s system is, of course, like a cable system. Aereo captures broadcast signals and retransmits them to customers. And in providing its service, Aereo, like a cable system, “uses its own equipment” that “receive[s] programs that have been released to the public and carr[ies] them by private channels to additional viewers.” “It ‘carr[ies] … whatever programs [it] receive[s],’ and it offers ‘all the programming’ of each over-the-air station it carries.”
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