Intentionally provocative nature of the headline notwithstanding, there’s an element of truth to the idea that with this week’s ruling whereby the Aereo television antenna was declared illegal by the US Supreme Court, pretty much every media and content sharing and manipulation device you own could be in trouble.
And we haven’t even gotten to where naming a team Redskins will bring about gun control.
I’ve written quite a few times, from my not-a-lawyer perspective, about Patents, Trademarks and Copyrights. And while—if you approach it from a practical and pragmatic perspective—Intellectual Property has always been a fairly easy thing to deal with, the death of Aereo throws pretty much everything into disarray.
This is very, very bad.
The Supreme Court made two very smart rulings this week, which renders the Aereo case all the more baffling. First, The Court ruled that your cell phone can’t be searched without a warrant, and earlier in the week SCOTUS held that software patents can’t cover abstract ideas (see this story about Facebook’s Newsfeed Patent or this one on an even worse software patent). Each of these rulings suggested that the highest court in the land was starting to understand the business changes that a world so steeped in technology was creating. Combine that with earlier rulings specifically allowing recording and storage technologies—a VCR ruling several decades back being most prominent—and it certainly seems as though Aereo’s technology for providing remote antennas specifically configured by Aereo in such a way as to make them, by definition, nothing more than that should have been upheld as legal.
And yet, no.
During the Supreme Court hearing on Aereo, SCOTUS Chief Justice Roberts asked a question that could have been interpreted either as “hey, you’re clever; you’ve built a whole business on a legal loophole!”, or as “you mean Aereo’s entire business is built on a legal loophole? How dare you?”. Clearly, the court’s decision, basically shutting Aereo down, didn’t hinge on that line of questioning—since even if the justices took the less flattering view it isn’t the Supreme Court’s job to have an opinion on a business model based on finding a legitimate legal loophole. It appears, then, that the Supreme Court’s Aereo decision is either based on the idea that a remote antenna is somehow different from an antenna you plug into a TV directly, or that by including DVR functionality located at Aereo, Aereo rendered itself a re-transmission service a la cable and satellite TV companies.
We’d all best hope it was the latter. And Aereo, if they wish to stay in business, can do so by assuming that was what happened, dropping the DVR part of things, and continuing to operate under a slightly different model until this case re-wends its way through the legal system.
If, on the other hand, what the Supreme Court “meant” in the Aereo decision was that the only way you can watch TV programming is by sitting in front of a device with a pre-specified-and-approved type of reception hooked up, every Internet-based form of TV re-transmission just started down a road toward ‘illegal’. Do you like streaming TV programming to your tablet or laptop? What about “Chromecasting“?
All things considered, there’s a certain irony in how broken the US Supreme Court’s own web site is, don’t you think?