Next week the United States Supreme Court will hear a case pitting Aereo, the startup that streams free-to-air broadcast TV to your home, against the broadcasters that provide this television content.
Mashable will be producing a variety of pieces to help understand the ramifications of a case that will resonate throughout the technology and media industries, regardless of which side wins.
To get started, here is an explainer on the case. If you have any questions after reading this, please put them in the comments.
How does Aereo work?
When you sign up for an Aereo account, what you are actually doing is leasing a small antenna and cloud service.
Each person with an Aereo account is assigned an individual antenna that accesses the broadcasts of free, over-the-air TV. These antennas, which are about the size of a dime, are grouped together and placed in an area to receive good reception.
Aereo then takes the television broadcasts from the antenna and streams them to you. It also stores the television broadcasts that you tell it to, like a DVR.
There’s debate about the legality of the antenna structure. However broadcasters’ brief to the Supreme Court dropped disagreements over whether Aereo’s antennae operated individually or in the aggregate.
The company has posted more info about its system and the legal questions at a new advocacy site — www.protectmyantenna.org.
So far, so good. What’s the issue then?
Broadcast television is the subject of copyrights, which protect the rights of content creators. Television stations pay licensing fees for broadcast content, otherwise they would be in violation of copyright law.
Aereo pays no such retransmission fees
Copyrights? Where is this headed…
Copyright law complicates this debate. We’ll try to make this simple.
The question revolves around public and private performances — how and where something is shown.
If you buy a DVD of a movie, you have the right to watch it in your home; that is considered a private performance. You are not allowed to play that DVD in a theatre and charge for tickets; that is considered a public performance and is a violation of the copyright.
So why can Aereo stream copyrighted material to a bunch of people?
Over-the-air broadcast television is free to air, meaning you are entitled to watch it privately without charge. You are also allowed to record it, say to a VCR, and watch it later.
Aereo’s argument is that it does not transmit to many people at once. It transmits to you, individually, from your antenna, through your cloud service, into your computer for your viewing only.
This, Aereo argues, constitutes a private performance. You are controlling the content privately as you would from your roof antenna. Aereo merely houses it for you.
In other words, Aereo could bill itself as an antennae leasing and cloud storage service. Neither of those things are illegal to operate. Aereo argues there is no difference between its service and having your own antenna to watch free TV.
But Aereo’s entire business plan is to retransmit!
True, but that in and of itself is not illegal. On its side are previous court rulings between Cartoon Network and Cablevision. These cases established that playing individual recordings of television (via DVR or cloud storage) was a private, not a public, performance.
One important difference here: Participants in this case were paying a license fee to transmit content. Aereo pays no such fee.
Who’s buying this argument?
On Aereo’s side is the U.S. Court of Appeals for the Second Circuit — the second-highest federal court in the country. It ruled 2-1 (a panel of three judges hear cases like this one, which appealed a lower court’s decision) in favor of Aereo, deciding the company’s offerings were essentially an off-site DVR and should not be considered public performance.
Who isn’t buying this argument?
A judge in Utah. He granted a preliminary injunction against Aereo on the grounds that the company had violated copyright law. The ruling disagreed about the interpretation of the relevant copyright law.
Neither is Judge Denny Chin, the dissenting voice Aereo’s 2-1 victory in the Second-Circuit Court decision, who said: “What Aereo is doing is not in any sense ‘private.’”
These judges take a macro approach: Aereo is commercially retransmitting these performances on a wide scale. Regardless of if it uses thousands of antennae or one antenna, they reason that Aereo is retransmitting copyrighted programs to the public.