Kyle J. Steenblik

Aereo tunes in for the big fight.

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Aereo is heading to the US Supreme Court to defend themselves, and their entire business, in a case that could have some profound impacts to media and its audience.  

The United States Supreme Court has granted the petition for a writ of certiorari in the matter of American Broadcasting Companies, Inc., et al., v. Aereo, Inc.  This means, if you haven’t stopped reading to Google it, the Supreme Court was petitioned to review the decision made by a lower court, in this case the US Second Circuit.  Before I start talking about what that actually means, and what I think about the whole bag of cabbage, I think I should provide a little bit of context.

American Broadcasting Companies, Inc sued Aereo for copyright infringement for allegedly rebroadcasting without license.  Included with that, was the complaint that they were also recording, for rebroadcast.  You see, the Aereo service takes the over-air television broadcast, and allows subscribers to stream that broadcast live, or to use the cloud based DVR to record that broadcast.  When you subscribe to Aereo you are leasing two things, cloud based DVR space, and an antenna.  The decision by the second circuit court of appeals affirmed that Aereo’s rebroadcast did not constitute a public performance and was therefore not in violation of current copyright law.

This also ties back to another case against Cablevision.  That case specifically Cablevision was alleged to violate copyright by creating a hosted DVR service that recorded and rebroadcast (public performance) the copyright holders’ property.  The second circuit found in that case the copying of content at a user’s request was not a copyright violation, and replaying content to the original audience was not a public performance, and recording for the purpose of video buffering did not violate the current copyright law.  That decision was not reviewed, and the Department of Justice asked the Supreme Court to not hear that case.

Here is why this is important to us, as viewers, and consumers.  Cloud based DVR service is very new and very cool.  It’s a service that very few companies offer, and those that do are in high demand.  To give you a very brief explanation, if you don’t know, of what is a cloud based DVR.  Imagine your DVR hard drive; now imagine your Google Drive.  Now imagine your Google Drive, was your DVR, and you could access recorded shows anywhere you could access your G-Docs.  Now, if you have a DVR, and you have ever had it crash, imagine not losing the entire season of Breaking Bad you hadn’t had the chance to watch.  If you are anything like me, you instantly said, “Yeah, I’d pay for that.”  If Aereo loses, cloud based DVR service could possibly only be offered by the original copyright holder.  It could possibly even mean that service couldn’t be provided by the original broadcaster, and that would be a tragic setback to an industry that needs this technology to save it from collapsing under its own weight.

There is a whole lot to discuss on this subject, both sides have arguments.  I believe Aereo will come out on top.  What do you think?

Below is a statement from Aereo CEO and Founder Chet Kanojia, who seemed to me, to be a pretty cool guy when I briefly met him:

“We said from the beginning that it was our hope that this case would be decided on the merits and not through a wasteful war of attrition. We look forward to presenting our case to the Supreme Court and we have every confidence that the Court will validate and preserve a consumer’s right to access local over-the-air television with an individual antenna, make a personal recording with a DVR, and watch that recording on a device of their choice.

“This case is critically important not only to Aereo, but to the entire cloud computing and cloud storage industry.  The landmark Second Circuit decision in Cablevision provided much needed clarity for the cloud industry and as a result, helped foster massive investment, growth and innovation in the sector.  The challenges outlined in the broadcasters’ filing make clear that they are using Aereo as a proxy to attack Cablevision itself and thus, undermine a critical foundation of the cloud computing and storage industry.

“We believe that consumers have a right to use an antenna to access over-the-air television and to make personal recordings of those broadcasts.  The broadcasters are asking the Court to deny consumers the ability to use the cloud to access a more modern-day television antenna and DVR.  If the broadcasters succeed, the consequences to consumers and the cloud industry are chilling.

“We remain unwavering in our confidence that Aereo’s technology falls squarely within the law and our team will continue to work hard to provide our consumers with best-in-class technology that delights and adds meaningful value to their lives.”

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