In the response, Aereo calls this decision a “massive setback for the American consumer.” Chet Kanojia, Aereo CEO, also cites Justice Scalia’s dissent in the statement, agreeing that the court may not be able to uphold its promise that this precedent won’t affect future technology providers.
See, the main question in the Aereo case was whether or not Aereo’s service, which offers a remote antenna and DVR storage for users who want to access OTA signals, was a public or private performance.
Based on earlier precedents and their interpretation of the Copyright Act, Aereo was built specifically so that users were in charge of their own programming and the actual tuning of the antenna, which should theoretically constitute a private performance, whether it’s viewed at the same time as another viewer or not.
For example, if 20,000 TWC subscribers all record Game of Thrones at the same time, which could be stored in the cloud and not in the box in the living room, and 1,000 of them decide to watch it all at the same time, does that constitute a public performance? According to the courts, the answer is no, even though Aereo (which does the same thing) is now considered illegal.
The implications for the tech industry have always been bad ones where this case is concerned. If pulling legally accessed content from the cloud at the same time as other users is considered a copyright infringement, than any cloud storage company is going to have to take a hard look at the legal issues that may follow.
In the meantime, Aereo is pretty much done, which is truly a shame since the technology seemed like the first step at breaking up an incredibly consumer-unfriendly TV and cable industry.
Here’s the response in full:
Today’s decision by the United States Supreme Court is a massive setback for the American consumer. We’ve said all along that we worked diligently to create a technology that complies with the law, but today’s decision clearly states that how the technology works does not matter. This sends a chilling message to the technology industry. It is troubling that the Court states in its decision that, ‘to the extent commercial actors or other interested entities may be concerned with the relationship between the development and use of such technologies and the Copyright Act, they are of course free to seek action from Congress.’ (Majority, page 17) That begs the question: Are we moving towards a permission-based system for technology innovation?
Consumer access to free-to-air broadcast television is an essential part of our country’s fabric. Using an antenna to access free-to-air broadcast television is still meaningful for more than 60 million Americans across the United States. And when new technology enables consumers to use a smarter, easier to use antenna, consumers and the marketplace win. Free-to-air broadcast television should not be available only to those who can afford to pay for the cable or satellite bundle.
Justice Scalia’s dissent gets its right. He calls out the majority’s opinion as ‘built on the shakiest of foundations.’ (Dissent, page 7) Justice Scalia goes on to say that ‘The Court vows that its ruling will not affect cloud-storage providers and cable television systems, see ante, at 16-17, but it cannot deliver on that promise given the imprecision of its results-driven rule.’ (Dissent, page 11)
We are disappointed in the outcome, but our work is not done. We will continue to fight for our consumers and fight to create innovative technologies that have a meaningful and positive impact on our world.
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