Analysis & Opinion

Aereo aftermath: What are the implications of Supreme Court ruling?

Simon Dyson,  Music & Copyright, Editor

Simon Dyson,
Music & Copyright,

Last month’s ruling against Aereo by the Supreme Court has left a number of questions in its wake. To get some answers, IP&TV News sought out Simon Dyson, editor of Music & Copyright,’ and an expert on the legal cat’s cradle of  copyright issues in the digital age. IP&TV News began by asking what the significance was in Aereo describing their operations as having been “paused” (as opposed to, say, categorically discontinued) – in other words, was this really the end of the road for it? Or did it have other options?

“As I understand it the Supreme Court won’t shut them down, they just say ‘your service is illegal,’ and send it back down to appeals court that then takes on board what the Supreme Court has said and then either serves the injunction or asks for more information from the broadcasters and Aereo,” explained Simon. “But the system that it operates has been found to infringe the broadcasters’ copyright, so the basic principle about the way it broadcasts is illegal, so it can’t do anything with that. From what I can see, it’s got to go back to the drawing board. It could start paying retransmission fees like cable operators do, but it was only able to price itself lower because it didn’t have to pay those fees. It’s stuck really. Its business model has been found to be illegal and from what I can see it doesn’t really have anywhere to go.”

Aereo itself, along with a number of apologists and sympathisers, had insisted throughout its protracted legal battle that a ruling against it would also constitute a ruling against innovation per se. Now that the (in some quarters) dreaded ruling has arrived, did Dyson think this was the case?

“What always seems to happen is, regardless of whether a service is infringing copyright or not, it’s always described as being innovative and of breaking away from the old traditional models. But a lot of these services don’t seem to take on board the fact that the content they’re providing – they have to pay the content providers for it. There are plenty of examples that show that innovation is alive and well – they just have to take on board the fact that they have to pay for the content.

“But on the flipside – unless you make your content available at a price that people can afford, and at a price where a business model can be established, then your content isn’t going to be distributed. You can hold onto your ball – but if no one wants to play with you, then you’re going to be left holding the ball. So there has to be a middle-ground in all content distribution, music or broadcasting, I just don’t think Aereo had it right in the way it went about launching its service.”

Finally, IP&TV News wanted to hear about what wider repercussions the ruling could have. Has the Supreme Court laid down a significant precedent with this ruling or not?

“The Aereo case will keep cropping up, I would imagine, but it was so specific to Aereo, rather than a general technology assessment by the Supreme Court, I don’t think it will act as a precedent for lots of different technical advances. If a service comes along that is very similar to Aereo it will set a precedent for that, but not for all the other technological advances that were mentioned in the case. Interestingly, in the published opinion, the court was quite adamant that it was dealing with the Aereo case and the Aereo case only – it wasn’t looking into remote storage, and remote DVR services. It’s sort of been hinted that that’s for another day, another court case, if another court case is needed.”

Ultimately, this looks all but inevitable…

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