Uh oh, Aereo

The Aereo decision is bad news for consumers, since it could take away a promising new model for watching free over-the-air television. Cord-cutters still have options. They can still access other online video services—and maybe some reconfigured version of Aereo—and watch broadcast TV with an antenna. But there’s no doubt that today’s opinion (especially when considered alongside ivi and Sky Angel) is good for the network/affiliate/cable status quo.

The outcome is not surprising, given the tenor of questions at oral argument. People are always asking me for my predication as to the outcome of a case where Public Knowledge filed an amicus brief, which is a bit awkward. Of course if you asked me on the record before today I would have told you that I was optimistic that a unanimous Supreme Court would simply adopt our brief. But like most observers I concluded that the Court was looking for a way to rule against Aereo but limit the collateral damage against the tech industry as a whole. However, I thought that the Court would do a better job. Instead, the Court uses reasoning that could apply very easily to any number of online services—file hosting, cloud lockers, even VPNs—as well as services that no one has even come up with yet. It then simply declares that Aereo is different, because it looks so much like cable. Unfortunately, only the Supreme Court’s actual legal reasoning is binding on future courts—the rest of the opinion just “dicta.” Judges can quote poetry and make jokes in their decisions, too. None of that is binding either. Dicta has the same legal status as legislative history—which is to say, it’s as binding as lower courts want it to be. A lower court is bound by a higher court’s legal holdings, not its stated intent.

On to a few of the legal specifics. Remember, the question the Court had to decide was whether Aereo was engaged in a public performance, when it provided each of its subscribers with an individual antenna that separately transmits broadcast programming to just that user. If Aereo is not the one “performing”—if it was the Aereo subscriber, instead—then Aereo wins. And even if Aereo is the one doing the performing, it would win if the performance was not “to the public.”

Many of the briefs in this case were worried that a ruling that says that Aereo “publicly performs” works could be applied to other online services, as well, which until recently everyone assumed were legal. They were right to worry because much of what the Court said today could easily apply to other kinds of services. This case gets very technical very fast and will give law professors a lot to do in years to come. The easiest way to see why the Supreme Court’s attempt to limit its holding to Aereo-like services is just to comment on the actual language it uses in the attempt. I’m not confident that the various ways it tries to distinguish Aereo from other services will work very well.

Here’s the Court:

We agree that Congress, while intending the Transmit Clause to apply broadly to cable companies and their equivalents, did not intend to discourage or to control the emergence or use of different kinds of technologies. But we do not believe that our limited holding today will have that effect.

Fair enough.

For one thing, the history of cable broadcast transmissions that led to the enactment of the Transmit Clause informs our conclusion that Aereo “perform[s],” but it does not determine whether different kinds of providers in different contexts also “perform.”

Here, the Court is addressing the concept of “volitional action.” Making a copy of a work might infringe copyright—but it matters who is doing the copying. The Court (and the dissent) use the copy shop example—the customers of a copy shop, not the copy shop itself, are the ones making copies. So if there’s copyright infringement, it’s the customers, not the copy shop, that are liable. (You can get to the copy shop via some theory of secondary liability, but first you need to establish who the direct infringer is.

But the Court does not offer any clear test for how to figure out who the “actor” is in a given circumstance. Instead, it suggests that future courts will have to undertake a historical analyses of some kind. It has answered the “volition” question for Aereo but hasn’t provided any certainty for other kinds of services.

For another, an entity only transmits a performance when it communicates contemporaneously perceptible images and sounds of a work.

I don’t see how this excludes many online services. A cloud locker service that allows people to store and stream back their own music or movies “communicates contemporaneously perceptible images and sounds.” Heck, if multiple people store and play back copies of the same work at the same time, they’re even simultaneously contemporaneously perceptible images and sounds! While this language may be comforting to some kinds of online services many others appear to meet this test.

Further, we have interpreted the term ‘the public’ to apply to a group of individuals acting as ordinary members of the public who pay primarily to watch broadcast television programs, many of which are copyrighted. We have said that it does not extend to those who act as owners or possessors of the relevant product.

The Court is suggesting that a whether people count as the “public” for copyright purposes depends on the nature of their relationship to the work. This logic was in many of the briefs—notably, the Solicitor General’s. But it’s a circular argument.

When I record a TV show off the air, then that copy is lawful. You don’t need a license to tune in to a broadcast, and home recordings of broadcast content are accepted fair uses. So why is it any different if I use the antenna that Aereo provides to record a program from the airwaves?

If you assume for the sake of argument that Aereo is legal, then Aereo subscribers are in fact lawful “possessors” of the programming in question—just like the home viewer. Only if you start by assuming that Aereo is illegal does Aereo fail this test. In other words, the Court’s test is that “Illegal services are illegal. But legal ones are legal.” This is not very helpful.


The Court appears to have a reasonable policy position: That Aereo ought to be treated like other services that help users watch broadcast content. (“Aereo ought to be treated like other antenna sellers” is another reasonable policy position, of course.) But the way it got there is troubling, because it adopts reasoning that could be used against many different kinds of services, and its attempt to distinguish them from Aereo has many failings. The most likely outcome of this case is more litigation, and perhaps future trips to the Supreme Court. The Court should have ruled in favor of Aereo, and perhaps sent a stern note to Congress to write better laws. Instead, it’s issued a decision that decides very little—and that will provide ample ammunition for litigants on both sides of future copyright fights.

I will grant the Court one thing: The statute is not very clear. As the opinion states at one point, “the language of the Act does not clearly indicate when an entity ‘perform[s]’ (or ‘transmit[s]’) and when it merely supplies equipment that allows others to do so.” I think when copyright laws are ambiguous the tie ought to go to the public’s right to use and access content—particularly when, as here, the content is already available for free to anyone with an antenna. The Court decided, instead, that the tie ought to go to how it imagined that Congress (in 1976) would have thought about Aereo if anyone had asked it. This was probably the wrong call. Like in the Brand X case, I join Justice Scalia in dissent.