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March 5, 2012
Is Cloud Retransmission Legal for Broadcast TV?
That question looks to be headed to the courts to decide, as nascent start-up Aereo
has been hit with pre-emptive lawsuits by television broadcasters.
As Rip Empson explains in a lengthy opinion piece for TechCrunch, Aero's business model is narrowly and painstakingly tailored to fit through what it believes is a viable exemption to copyright restrictions. Here's how it works: courts have ruled that in cases where the end consumer does everything - selecting the content, recording it, reviewing it in-home and privately - the activity is legal. This was the basis for the recent case known as Cable News Network v. CSC Holdings in which Comcast was able to offer what it called a "remote DVR" service. Instead of having a DVR in the home (which is legal) Comcast argued it was simply providing remote server storage and controls to do the same thing. Since the activity wasn't infringing, courts held that Comcast's service wasn't infringing.
What Aereo proposes to do is allow its customers to tune in to any one at a time of 20 local broadcast channels. The channels will appear on any of the consumer's Web-enabled devices by means of a special antenna they'll rent from Aereo. This may not seem like a big deal, but it is something that has been sought after for a while by people who want to "unplug" from their TV and take the programming with them. As in the Comcast situation, only one copy of the information will ever be made per consumer and the acts of selection, storage, and streaming will all be under the consumer's control. Thus, the reasoning goes, it ought to be legal.
Of course the broadcasters don't want anyone bypassing them, and they're suing Aereo despite the company being backed by one of their own: Barry Diller, who is credited with (among other things) the creation of the Fox and USA broadcasting networks. Sadly I agree with Empson that the most likely outcome for this case is that it'll be bogged down in courts for so many years that the company will run out of money or the whole landscape will shift and moot the case.
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