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The Supreme Court Begins Deciding The Future Of TV Tomorrow: An Explainer

By / 04.21.14
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Tomorrow, the Supreme Court will weigh in on whether or not Aereo is legal. And that’s got some fairly huge implications for how you’re going to watch television in the future, not to mention serious implications for television itself. Here’s what you need to know about the case in front of the Supreme Court.

Who are the two sides on this case?

On the one side are the broadcast networks, and on the other is TV start-up Aereo. Aereo, as we’ve covered before, records over the air TV signals and lets you watch them inside a specific market.

Why do broadcast networks hate this and want it to die?

The networks believe that Aereo violates copyright law and broadcasts their signals as a public performance. Aereo argues that it’s constructed to be precisely the opposite of that; each subscriber gets an individual tiny antenna, the size of a dime, and their own set of storage space on Aereo’s servers.

In addition, Aereo has other restrictions. You can’t watch anything you’ve recorded on Aereo outside the geographical area your subscription covers, and your credit card has to have an address within that geographical area. So you can’t pull an end-run around NFL blackouts and the like, at least in theory. Also, you can’t hang onto broadcasts forever; they “expire” after a few months.

That’s the legal reason. What’s the real one?

Basically if Aereo turns out to be legal, it gives tech companies an end run around the retransmission fees broadcast networks charge pretty much everybody, and in the case of some networks is the only thing keeping them profitable. Essentially the networks believe that if Aereo survives, they must go off the air. CBS and Fox have both threatened to go off the air.

Will they?

Pffft, no. All Aereo is is a DVR service. You could buy a DVR, hook it up to an antenna, and get the same thing, arguably a better service in fact. But being told that everything is shifting to the Internet is not something networks want to hear, so they’re spending a lot of money to not hear it.

Didn’t the Supreme Court already rule that cloud-based DVRs like this were legal?

No, they just refused to hear a case, specifically Cartoon Network Vs. CSC Holdings, generally called the Cablevision decision, which essentially ruled that yeah, you can have a DVR on a network. Location doesn’t matter, only functionality does.

That sounds like a settled matter to me. Why is the Supreme Court taking this case?

At a guess, because they want to clarify a few points about the Cablevision ruling. In fact, it only got this far because the broadcast networks sued Aereo and lost. Twice.

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How will the Supreme Court rule, do you think?

Legal scholars are conflicted on this one, but honestly, it’s a fairly easy call. This court is very conservative, in the classical sense: It doesn’t rock the boat and it’ll go out of its way to do so. Take their decision on Proposition 8, which said absolutely nothing about gay marriage and instead ruled that the legal team trying to defend it had no standing to do so.

And it’s extremely unlikely any Supreme Court is going to hand down a ruling that essentially completely rewrites copyright law in the United States. This is especially true when the realistic consequences are so blatantly trivial and the fundamental legal reasoning behind this is so thoroughly argued; this is essentially just a repeat of the equally dumb legal arguments over the VCR.

The entire problem the networks have had is that they’ve been unable to demonstrate, in court, how Aereo is any different from a VCR, or for that matter that Aereo does any harm to their business whatsoever. It’s virtually guaranteed that at some point, a Justice will ask why Aereo does so much damage, but plugging a TV antenna into your computer is legally harmless. The network’s entire response has been “because the Internet,” and it’s hard to see that having any real legal weight.

So essentially broadcast networks have spent millions of dollars on lawyers for nothing?

Yep. But of course it’s technology killing broadcast television. Of course.


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