The Supreme Court’s big Aereo decision today came down to whether the company’s internet TV service more closely resembled a cable company or “a copy shop that provides its patrons with a library card” (the quote is from Antonin Scalia’s dissenting opinion). A majority of six justices decided it was more like the former, which seems pretty reasonable. But that led them to declare that Aereo’s business of giving customers access to free, over-the-air television programming via the internet amounted to a copyright violation, which seems a little crazy.
The culprit here, not surprisingly, is the U.S. Congress, in particular the amendments it made in 1976 to the Copyright Act. The Supreme Court had ruled in 1968 in Fortnightly Corp. v. United Artists Television and in 1974 in Teleprompter Corp. v. Columbia Broadcasting System that cable companies should be free to pass on broadcast signals to their customers. The broadcasters — at that time much bigger and more powerful than the cable companies — objected, and Congress, which has a habit of siding with business incumbents over upstarts unless those incumbents are overtly nasty and monopolistic, changed the law to effectively reverse the Supreme Court’s decisions. Since then, cable companies have had to get permission to rebroadcast over-the-air TV, and in recent years the big commercial networks have been increasingly successful in getting them to pay for it. At the same time, less in-demand broadcasters are able to force cable providers to carry them. Nice work if you can get it.
All this has contributed (it’s certainly not the main factor, but still …) to rising cable-TV prices, which are driving growing numbers of consumers to “cut the cord” and get all their entertainment via streaming services like Netflix and Hulu. But there’s still stuff on broadcast TV that people want to see. Like the Super Bowl.
One way to watch broadcast TV is really simple — get an antenna. And in fact over-the-air TV has been making a comeback in recent years, to the avowed delight of broadcasters. But in a spread-out land of mountains, valleys, and skyscrapers like the U.S., lots of people don’t have access to clear over-the-air TV signals, which is why the cable TV industry got started in the first place and why Aereo came up with its ingenious solution. With Aereo, the antennas are located in a data center with good TV reception, and the signal is transmitted to your TV via the internet.
That seems like a really smart, consumer-friendly technical solution. Cable providers understandably hate it because they don’t get to carry broadcast TV without permission. As for broadcasters, at first glance you might think they’d like Aereo. They’re no longer the all-powerful giants they were in the 1960s and 1970s, and should presumably be in favor of anything that has the potential to expand their shrinking audience.
Except … all the major commercial broadcast networks in the U.S. are owned by companies that also own cable channels — and, in Comcast Universal’s case, cable systems. So they’re deeply compromised, and they’re also trying to shift their purely ad-supported broadcast business models to something closer to cable’s mix of user fees and advertising.
This raises some profound questions. If the big commercial broadcasters will go to such lengths to keep others from retransmitting their programming, should they really be treated as broadcasters? Should they continue to get cheap access to the broadcast spectrum — the “public airwaves” — and the right to force their way into cable system lineups? The whole structure of broadcasting that has grown up in the U.S. since the 1930s seems increasingly at odds with consumer demand and modern technology. But as the Supreme Court made pretty clear today, it’s most likely going to be up to Congress to bring the rules in line with new realities. I’m not holding my breath.