Today’s win in the Aereo decision (where PK had filed an amicus brief) has been greeted by predictable moaning from the broadcast industry. “The court has ruled that it is ok to steal copyrighted material and retransmit it without compensation,” the National Association of Broadcasters stated, ignoring that what the court said today was precisely that Aereo’s service isn’t “stealing” anything.
In case you’ve forgotten, Aereo is a service that rents little TV antennas out to people. Instead of putting an antenna on the top of your roof to watch broadcast TV, you can rent one from Aereo. The broadcasters tried to argue that Aereo’s service is like cable TV (which does need a license)–but cable TV works differently. It transmits a single signal to all its subscribers, instead of giving each subscriber her own dedicated equipment. Sure, this is a somewhat artificial legal distinction–but it’s important to maintain the distinction between public “performances” (where you usually need a copyright license) and private performances (where you don’t). If this case had gone the other way, would record labels start saying that Sonos needs a license to allow people to stream music around their houses? Would Radio Shack have to get a license to sell rabbit-ear antennas? In any event, just because Aereo is a “disruptive” force in the TV industry doesn’t mean it’s illegal. As the Supreme Court recently wrote in Kirtsaeng, there is “no basic principle of copyright law” that says that rightsholders deserve legal protections for their existing business models. A lot of people (rightly) point out how convoluted copyright law is that something like Aereo makes sense. Certainly PK wants to reform copyright law in a number of ways. But eliminating the distinction between “public” and “private” is not one of them.
The broadcasters are not out of legal options and I expect them to exhaust them. But my advice to them would be to get out ahead of Aereo instead of trying to stop it. Viewers have shown that they want something like Aereo–online access to popular programming, watchable on various devices, without the need for a specialized set-top box or a full cable subscription. They’ve also shown they’re willing to pay for it. The wisest course for traditional broadcasters would be for them to start offering what viewers want instead of suing the people who do it for them.