Future of Television at Stake at Supreme Court Today

Today, the Supreme Court is hearing arguments in ABC vs Aereo, a case that will (cue drumroll) decide the future of television. Or maybe it won't, but it's a fascinating case, involving the intersection of technology with political and market power. There's a comprehensive explanation here, but the short version is that Aereo is a service that allows you to get broadcast TV, i.e. the major networks and a few others that send signals over the air, through an internet connection instead of a set of rabbit ears on top of your TV. The broadcast networks and the big cable companies want to shut it down, because they'd both rather have everyone getting the signals through cable. You see, your cable company pays a license fee to ABC, NBC, CBS, and every other network, fees that amount to billions of dollars a year (and get passed on to you). Someone who uses Aereo to cut the cable cord isn't paying those license fees, and isn't paying for a cable subscription either.  

Aereo is, without question, a potentially disruptive technology that threatens one of the networks' profit streams. The question is whether the Supreme Court should step in to protect those profits.

The case hinges on the definition of a "public performance." According to a law written during the early days of cable television, if you hold a public performance of a broadcast television program—like a bar showing a playoff game—you have to pay a licensing fee to the broadcaster. If Aereo were just pulling the broadcast signals out of the air and retransmitting them over the web to their subscribers, there would be no question that they would be doing something similar.

But what Aereo came up with is a technical means of making their transmissions private. If you subscribe to Aereo, you have your own antenna at their facilities. It's a tiny little one sitting alongside thousands of others, but it's getting the signal from the air. The company argues that it's no different from that set of rabbit ears on top of your television; your personal antenna just happens to be located not at your house but at Aereo. You also get a cloud-based DVR, allowing you to watch programs whenever you want.

The broadcasters think that's a sneaky way to get around the copyright law. And it is. But that doesn't make it illegal.

It seems to me that the legal question is pretty straightforward. The courts already said, in a separate 2008 case, that cloud-based DVRs don't violate copyright. And if Aereo gives me my own antenna, they're not mounting a "public performance" as defined in the law. Keep in mind also that the networks still make money from Aereo subscribers, because they're watching the advertising the networks sell.

And yes, this encourages people to cut the cord. But businesses have their profit models upended by new technologies all the time, and "This means we'll make less money!" isn't exactly an argument that seals your case. But with this Court, all that doesn't tell us what the outcome will be. Because what we have here is a conflict between a bunch of hugely wealthy and powerful corporations on one side, and a scrappy startup on the other. It's no surprise that the networks' case is being argued by Paul Clement, the GOP superlawyer who is such a fixture at the Supreme Court that he is sometimes referred to as the "10th justice."

That power imbalance doesn't bode well for Aereo, regardless of the merits of their case. In 2009, Jeffrey Toobin of The New Yorker wrote that the key to understanding the Roberts Court is power, because those who have it are likely to prevail. "The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party."

That's no guarantee of anything; every once in a while, the Court's usual ideological lines disappear. And there isn't a clear partisan divide on this question, even if conservatives are inclined to favor big corporations over a company that puts power in the hands of consumers. But if Aereo wins, you can bet that the cable and broadcast companies' lobbyists will get right to work on a new law putting them out of business, ready to be inserted into a must-pass omnibus bill at the next opportunity.

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