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Aereo Loses at Supreme Court


In April, I wrote a blog discussing the case of American Broadcasting Companies, Inc v. Aereo, Inc. The case had just been argued in front of the Supreme Court, so a decision was a couple of months off. On June 25, 2014, the Supreme Court finally issued its ruling with a 6-3 decision in favor of the broadcasting companies.

The majority’s decision found that Aereo did violate copyright law (I believe more specifically the 1976 Copyright Act). The Court also found that Aereo is basically a cable company, but didn’t necessarily call it a cable company in the ruling. What the six-justice majority didn’t buy into was Aereo’s arguments that they were simply renting equipment to customers instead of re-transmitting copyrighted material. Aereo’s use of thousands of tiny antennas each receiving an over-the-air signal did not sway the court.

The three-justice dissent was very skeptical of the majority’s decision (I guess this is often the case). Written by Justice Antonin Scalia, the opinion scoffed at the “looks-like-cable-TV” standard the majority used and accused the majority of putting together a “totality-of-the-circumstances test (which is not a test at all but merely assertion of an intent to perform test-free, ad hoc, case-by-case evaluation).” Justice Scalia basically argues that the Court is in a sense creating law: “It is not the role of this Court to identify and plug loopholes…[it is] the role of Congress to eliminate them if it wishes.”

The ruling effectively put Aereo out of business, or at least has them pausing their operations temporarily. However, Aereo does see some hope in the Supreme Court’s decision. Since Aereo is basically being called a cable company by the Court, maybe they should be treated the same as one and be allowed to keep operating if they pay the proper fees. Aereo did try its luck with the US Copyright Office and didn’t receive the warm response it was hoping for, but this argument is still to be heard in front of the court as the Supreme Court’s decision remanded the case back to a lower court. For now, all we can do is wait and see what will happen. My hope is Aereo is able to continue in some fashion so that we can see continued innovation and shake up in the traditional broadcast delivery methods.




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