April 23, 2012 | By Mitch Stoltz

Aereo, free airwaves, and the copyright land grab

Remember over-the-air broadcast television? The kind that you can receive on a variety of devices, without scrambling or monthly fees? For decades, the principle that the public airwaves are just that – public property – has been an obstacle to TV studios’ efforts to control when, where, and how we watch their programs – and at what price-point.  But that hasn’t stopped them from trying.  The latest target is Aereo, a New York City startup that lets users stream local broadcast TV from a dime-sized antenna on a Brooklyn rooftop to their personal devices.

Supported by some of the same organizations that supported the SOPA and PIPA Internet blacklist bills, the TV networks complain that Aereo is "retransmitting" New York TV stations without a license. They insist that while Joe Citizen can put an antenna on his roof and run a wire to his TV, he can't rent an antenna from Aereo and replace the wire with (oh, no!) the Internet. We’ve seen this before: a new user-empowering television technology emerges, and, almost on auto-pilot, the studios send their lawyers to try to shut it down.  Their basic theory?  If a new technology creates a new way to access the TV programming that we already have a legal right to view, the studios are entitled to control and profit from that technology.

But as the courts have said time and time again, that's just not how the law works. A quintessential example: the VCR. Movie studios sued to keep home video recorders off the market, arguing that the ability to tape TV programs to watch later would destroy their industry. (Former Motion Picture Association of America head Jack Valenti famously compared the VCR to the Boston Strangler.) The Supreme Court rejected the studios' arguments, saying that people have a right to tape from the public airwaves, and VCR manufacturers didn't need to pay royalties to the studios.

Fast forward to 2008, when a group of TV networks tried to shut down Cablevision’s "remote DVR" service. That service allowed cable subscribers to record shows to which  they had already bought access and save them to a hard drive at the cable company's facility, instead of on a DVR in the subscriber's living room. Again, the TV networks insisted they should have a right to profit from and control – or stop – this new technology. Again, the court said no, because a customer’s personal recording and viewing of the cable shows she had already paid for doesn’t trespass on any of the rights that the law gives to copyright owners.

The familiar arguments are re-surfacing in the Aereo dispute. Just as they once claimed the right to charge a toll for recording a TV show to watch later, the studios claim that they, and no one else, should control the ability to receive free broadcasts and stream them to Internet-connected devices. Essentially, the networks are saying that simply because Aereo's technology is valuable to TV watchers, copyright owners have a right to capture that value.  The Institute for Policy Innovation repeated that argument in an e-mail blast denouncing Aereo this week, insisting that Aereo is not a "legal business" because "one must pay for the raw materials that go into a product." – meaning, the television shows being broadcast on the public airwaves.

I guess no one told that to TV manufacturers like Samsung and LG. They don't pay for the shows that go into their TVs. Radio Shack doesn't pay ABC for the right to sell TV antennas, even though ABC’s shows make those antennas valuable. Movie theaters that sell popcorn don't owe a cut of those sales to the studios, even though popcorn enhances the movie-going experience. We understand, intuitively, that just because a product or service adds to the experience of watching TV and movies, or makes it possible in more places and times, doesn't mean that copyright owners should have control, or charge a toll.

The TV networks are hoping to squash Aereo before it can expand beyond New York City.  Hopefully, the court hearing the suits against Aereo will focus on what the law says, not what the networks wish it to be.


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