The Aereo Ruling Demonstrates the Supreme Court’s Terrible Technological Analogies

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June 26 2014 12:07 PM

The Limits of the Supreme Court’s Technological Analogies

The misguided Aereo decision shows why technical details matter.

Aereo Ruling
Aereo is to cable systems as the Supreme Court is to _______.

Photo illustration by Slate. Photos by Getty Images.

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.  

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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.”

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.

Mark P. McKenna is a law professor at the University of Notre Dame. He teaches and writes in the area of intellectual property.