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ABC v Aereo – much ado about streaming

As the dust has settled on the US Supreme Court’s June ABC v Aereo decision, it is worth revisiting the case to determine whether the “dire consequences” predicted in the court’s dissenting opinion have come to pass

The case came about after the start-up Aereo launched a service that threatened to upend traditional TV broadcasting. The company’s thousands of dime-sized antennas were each assigned to different subscribers to wirelessly watch TV programmes that were otherwise being provided for free on basic cable. The personalised nature of the antennas – which functioned to stream the given TV show a few seconds behind its actual air time – meant that no two subscribers were watching the same copy of a given programme.

The original broadcasters – which included 21st Century Fox, CBS, NBC, and ABC – all protested, claiming that copyright to their materials had been infringed without permission. Aereo defended its actions, claiming that all it did was provide a device to watch programming that was already available.

The Court sided with the plaintiffs, ruling that Aereo and its cloud-based technology was too similar to a traditional cable company to say its service did not infringe on the other companies’ copyright. “Given Aereo’s overwhelming likeness to … cable companies,” wrote Justice Stephen Breyer in the majority decision, the “sole technological difference between Aereo and traditional cable companies does not make a critical ­difference here”.

The case’s dissenting judges in the 6-3 ruling, however, saw dire consequences. Writing for the minority, Justice Antonin Scalia criticised the majority for “disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (‘looks-like-cable-TV’) that will sow confusion for years to come.”

Many Supreme Court watchers were left unsurprised by the decision. “I don’t think the outcome was surprising,” says Terry Hard, director of legal policy for the Copyright Alliance. “I think the biggest question was how they were going to approach the cloud computing issue, and there were no surprises there. They basically said that the decision was limited to the facts here. It didn’t extend to other sorts of services in the cloud.”

However, the majority opinion may have been too vague in its approach to cloud-based technologies to be of much use. “When you’re engaged in classic cloud stories – like Dropbox, [which is] just a directory in the cloud – I think you can probably confidently point to the area of decision and say, ‘Look, we’re okay,’” says Matt Schruers, vice-president of law and policy at the Computer & Communications Industry Association. “But if you want to do anything different from that – side-loading, newer cloud-based innovations – it’s not really clear to me that the area of decision gives you a lot of comfort. And who’s to say that a future court won’t say, ‘Well, this looks like cable?’ That’s more or less what Breyer says – if it looks like cable, we’re going to regulate it like cable. As a lawyer, it’s kind of hard to say to your client, ‘Don’t do anything that looks like cable.’”

Other lawyers believe that the Aereo decision could lead to contention between countries over whose copyright laws are applicable in a given scenario. According to Andrea Rush, a lawyer at Blaney McMurtry, the Aereo decision has helped shine a light on the “interesting intersection between the rights and limitations, which are set out in legislation in different countries”.

This will be the topic of debate on the AIPPI panel tomorrow titled “Aereo – Copyright Lessons for the US and Beyond”, moderated by John Carson of Knobbe Martens.

“What you’re going to see is debate over which is the applicable law,” says Rush, who will be on today’s Aereo panel. “There are now options, and that’s why it’s really important to keep an eye on developments in not just your own domestic legislation, but also the laws of different countries when you’re dealing with communication of content over the internet. And Aereo underlines that.”

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