Video streaming service Aereo loses at Supreme Court

Justices say Aereo's Web-based streaming video service violates the performance right in copyright law

By , IDG News Service |  IT Management

Scalia, in his dissent, compared Aereo's service to businesses offering photocopying services. "A copy shop rents out photocopiers on a per-use basis," he wrote. "One customer might copy his 10-year-old's drawings -- a perfectly lawful thing to do -- while another might duplicate a famous artist's copyrighted photographs ... Either way, the customer chooses the content and activates the copying function; the photocopier does nothing except in response to the customer's commands."

Digital rights group Public Knowledge questioned the ruling. "It is very unfortunate for consumers that the Supreme Court has ruled against Aereo," said Bartees Cox, a spokesman for the group."Aereo is a true innovator in the TV industry and provides high quality and affordable programming for its customers. We look forward to seeing what Aereo will do in response to the Supreme Court's ruling." 

The decision may have an "initial effect on technological development," added Ross Dannenberg, an intellectual property lawyer at Banner & Witcoff's Washington, D.C., office. "In the back of their minds, [tech entrepreneurs] will be thinking, 'remember what happened to Aereo? They spent all that money and then were shut down'."

But the Supreme Court went "out of its way in an attempt to prevent the decision from stifling innovation" by focusing on Aereo's specific technology, he added by email.

Although Aereo supporters had raised concerns about the impact of a decision against the company on cloud service providers, the court said those types of businesses should be unaffected, Dannenberg said.

Andrew Goldstein, a partner at Freeborn & Peters in Chicago, agreed that the decision was limited.

"The Supreme Court majority opinion emphasized that they are not ruling on future technologies that are not before them at the moment; and that given the limited nature of the holding the court does not believe this decision will discourage the emergence of use of different kinds of technologies," he said by email.

Remote DVR services may be affected, but other technologies aren't covered by the ruling, he said.

"I do not believe that this decision makes it tougher in general to launch new innovative services," he said. "If anything, this case is a lesson to new technology developers that if you build your business on a loophole in the law, similar to Aereo, your business may be akin to a house of cards."

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.

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