AT THE Supreme Court on Tuesday, some observers have noted, the justices seemed flummoxed by the case of Aereo, a company that pulls network TV broadcasts off the airwaves and streams it to online users for a monthly fee. That is not because the court’s jurists are hopelessly incapable of considering its business model. It is because taking decades-old law and applying it to new technological reality is hard.
The principles at stake, however, are much simpler. Aereo’s critics want to shore up the exclusive right of the people who own copyrights on programming to control — and profit from — the distribution of their work. Aereo benefits from the notion that the networks are allowed to send such programming over the public airwaves on the condition that anyone can view it for free.
On principle, the balance should obviously favor consumers. There is no difference between getting network television for free with an antenna or doing so with an Internet connection that warrants different treatment of the two — beyond accounting for the costs of the different sorts of infrastructure that makes each possible. The court has underscored that individuals have the right to put up antennas, record programs and use that material privately. The essence of Aereo’s case is that the firm provides the infrastructure — antennas, recording space and streaming setup — so that people do not have to bother with all of that on their own. Which makes sense.
There is a chance, however, that the court will determine that the law does not leave enough room for that principle to survive. In the past, the justices typically and rightly sided with those defending new technologies that promote consumer access. Congress, though, established different rules. Under the Copyright Act of 1976, copyright holders have broad control over the transmission — and retransmission — of their content. Given those rules, Aereo’s critics might well succeed in shutting down the service.
If that happens, Congress may have to step in — not simply for Aereo’s sake but also to limit the damage such a ruling might do to other services that are reshaping for the better the way Americans consume programs. The justices were rightly concerned, for example, about how they could repudiate Aereo without harming various online “cloud-based” storage and transmission services. Increasingly, Americans are piping material over high-bandwidth wires or wireless connections to their television sets, tablets and phones. This promises to reshape programmers’ business models in ways that make their products and delivery more responsive to and more convenient for consumers.
The law should ensure that people who create content can obtain fair rewards from copyright protections. But it must also allow innovators to innovate.