By Chuck Ross
Terrific piece on the CNET website today, Monday, April 21, 2014, by Joan Solsman titled “Why the Aereo Supreme Court Case Over TV’s Future Is Too Tough to Call.”
Officially, the case is “ABC vs. Aereo” and oral arguments will take place tomorrow, Tuesday, April 22, 2014, at the U.S. Supreme Court.
On the website of the Supreme Court, the Court has stated what the question is that the court needs to decide.
First, the law is explicit in saying that a copyright owner possesses the exclusive right to perform that copyrighted work publicly.
So the question is whether or not Aereo distributes copyrighted work “publicly.”
Here’s how the Supreme Court has framed the question: “Aereo captures over-the-air television broadcasts and, without obtaining authorization from or compensating anyone, retransmits that programming to tens of thousands of members of the public over the Internet for a profit.
“According to the Second Circuit, because Aereo sends each of its subscribers an individualized transmission of a performance from a unique copy of each copyrighted program, it is not transmitting performances ‘to the public,’ but rather is engaged in tens of thousands of ‘private’ performances to paying strangers.
“The question presented is:
“Whether a company ‘publicly performs’ a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.”
Solsman, in her CNET article, writes: “On a final exam, University of California Berkeley law professor Pamela Samuelson [recently] asked her copyright class to answer whether Aereo is, essentially, a true technological innovation or just a legal one. It's a nuance that the Supreme Court will consider, too, on Tuesday as it weighs whether Aereo's service to stream local over-the-air broadcast TV violates the copyrights of the television broadcasters that are suing to stop it.
" ‘My poor students were suffering enormously,’ Samuelson said, after they complained about the difficulty of the Aereo question. ‘I told them, “I was really interested in what you thought!”’
“Why? Digital copyright expert Samuelson isn't certain how the Court is likely to go on the case, which sets the stage for reinterpreting video and digital law in today's technology-laced era. The legal minds of Berkeley aren't alone. Professors from many of the country's top law schools say it's unusually hard to predict because the Supreme Court's track record in copyright varies, because copyright law is politically ambiguous and because an Aereo decision could radically change not only how the U.S. interprets copyright in the digital age but also what technologies — some of which are the bedrock of the Internet itself — are infringing upon it.”
What a terrific question for Professor Samuelson to ask her students. Since the CNET article didn’t say what the results were when Samuelson did that, I called Samuelson myself.
She said that there were about 60 students who took the test, but that “the results were not conclusive. The students were very much split. You couldn’t say that most of the students were leaning one way or the other. The issue was not resolved.”
As for Samuelson herself, she says she expects to have a much better idea where the Supreme Court judges might be leaning after hearing the oral arguments on Tuesday. Her guess right now — prior to the oral arguments — is that the Court, in a split decision, will find for Aereo, and basically tell ABC (and the other networks) that if they want to find relief they need to work through Congress to change the statute.
The CNET article adds: " ‘There's nothing that ties the Supreme Court's hands in this case, which makes it doubly intriguing,’ said Shyamkrishna Balganesh, assistant professor at University of Pennsylvania's law school.
“The evolution of copyright in the U.S. has followed a clear pattern, according to Dotan Oliar, a University of Virginia law professor who has written about the legal trade-off between copyright and innovation. A copyright-based industry, he said, makes money under a status quo until a disruptive technology threatens it, the copyright holders go to court or Congress, and the model morphs to a new status quo until the next disruptive technology surfaces.
“Only six cases addressing the same copyright issues as Aereo have actually made it to the Supreme Court over the last 100 years, Oliar said. But no pattern of decisions has yet emerged. The Court has found infringement in some and none in others. It has reversed some lower-court decisions, and it has affirmed others. ‘I cannot say, “Here's the consistent line.” There is no consistent line,’ he said.”
CNET, by the way, is owned by CBS.