Feb. 9, 2016 SIGN IN | REGISTER

Court's Aereo Decision Narrow Enough for Some, Continues to Raise Questions for Others

When the Supreme Court ruled last month that the television streaming service Aereo had violated the copyrights of major broadcasters, the justices also cautioned that their ruling was limited in nature.

“The Court,” wrote Justice Stephen G. Breyer for the majority, “does not believe its decision will discourage the emergence or use of different kinds of technologies.”

But some people worry the Aereo decision could still be unclear for other technologies, like those involving “cloud” computing where data is stored and transferred among remote computer servers.

Others think the decision is narrow enough to not have sweeping implications on these technologies.

Nevertheless, one legal scholar says the big problem is that the court’s narrow ruling has left too much to the imagination.

James Grimmelmann, a law professor at the University of Maryland who signed onto an amicus brief in support of Aereo, said if a court wants a narrow case, it has to do more than just say “this is a narrow holding.”

The Supreme Court, he said, should have explained why its decision doesn’t apply to other cases with certain features in common.

The central question in the Aereo case was whether the tech startup violated the exclusive right of television broadcasters to publicly perform their copyrighted works.

Aereo was designed to comply with this law with its unique operating setup: Subscribers could go to the company’s website and choose a broadcast show to watch, and in doing so, would “rent” one of Aereo’s thousands of dime-sized antennas housed in the company’s facilities. Data would be stored for the specific customer on an Aereo hard drive, and would be streamed over the Internet to the customer.

Aereo said it only provided equipment and that its policy of one-antenna-per customer, generating personal copies of shows, meant that it wasn’t publicly performing copyrighted works, but enabling private performances.

A majority of the court, though, agreed with the networks that Aero was not materially different from cable and satellite companies, which pay rebroadcasting fees when they provide customers with content from networks such as ABC, CBS and NBC.

The justices also said they had not considered the question of whether the public performance right is infringed with technology like the remote storage of content. Questions involving cloud computing, remote storage digital video recorders and other novel technology that Congress hasn’t addressed, wrote Breyer, “should await a case in which they are squarely presented,” quoting a brief from the solicitor general.

Cautious Optimism

The Center for Democracy and Technology and several technology trade groups had worried before the ruling that a broad decision would seriously hamper mainstream services and threaten the future of cloud computing.

Later, David Sohn, the CDT’s general counsel, said he was “pretty optimistic” the decision was sufficiently narrow and that new services that don’t really resemble cable TV would be well positioned to argue they are distinct from Aereo and the court decision doesn’t apply to them.

On the other hand, Sohn said, the court missed an opportunity to clarify the legal environment that different services might be subject to. For example, it didn’t specify exactly why Aereo should be considered performing, other than that it looks like cable.

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