ABC v. Aereo:

Broadcast and Performance

In what I am hoping will be but the first in a series (or second, depending on how one counts it), the following is a look at the intersection of the arcane worlds of popular culture and law. While not intended as legal advice, it is my goal to take the complex arguments and theories involved and translate them so that a non-lawyer can understand the controversies and rules that affect fandom so intimately. This is important because ours is a “government of laws, and not of men.” You will not always like what I have to say. Sometimes I don’t, either, especially when dealing with the Supreme Court. This is because, no matter what one might think, under the US Constitution, they are the final arbiters of correct and incorrect law. It is their job to “say what the law is.” Our system has its flaws, but that’s how it works, and I aim to explain a little bit of it.

This past summer the Supreme Court issued its decision in the ABC v. Aereo case. The short version is that the Court held against Aero because it was rebroadcasting, a form of performance, shows owned by ABC based on the Copyright Act of 1976.

Specifically, “the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: … (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.” Rebroadcast has been interpreted as re-performance since at least the Sony v. Universal case in 1984. As such, this should have been a fairly cut and dried case but it just wasn’t. But then, given my own thoughts on copyright, that it was a mess was unsurprising.

What differs from previous cases, in which this sort of thing was allowed, is that Congress changed the rules with the 1976 law specifically to prevent this sort of thing. The Court had more leeway under the older rules because they were either vague or nonexistent for rebroadcast and, whenever possible, the law must construe vague principles to the benefit of the accused. After 1976, the rule was no longer vague. As such, Aereo and companies like it could no longer hide behind ambiguity and, with only a few rare exceptions, no one has ever been able to claim ignorance of the law as a valid excuse for breaking it (Ignorantia juris non excusat).

Aero might have gotten away with it if they had merely provided equipment with which to perform these actions, as did Sony in their case. The use of antennas dedicated to individual users also differentiated their service from other online providers. However, Aero did more than that by actually engaging in a rebroadcast in addition to enabling it. Further, they do so for a profit. Despite what the EFF might say, making money off someone else’s ideas or performances without permission is theft and has been considered such, regardless of medium, since the days of Roman law.

CEO Chet Kanojia countered the claims by saying “”we believe you should have a right to access that live programming whether your antenna sits on the roof of your home, on top of your television, or in the cloud.” He has some valid points to make in his letter to Aereo consumers. The rules regarding copyright, and broadcast in particular, are arcane in themselves as well as lagging behind technological developments by at least twenty years.

In his letter he writes, “We began this journey because we were frustrated with a system that we believed was broken and no longer served the consumer. When it came to watching live television, the options were few, the products available were cumbersome and didn’t fit our increasingly mobile lifestyle, and costs were unreasonably high and rising.” To give but one example of the sort of shenanigans Kanojia was trying to work around, one need only consult the NFL’s Blackout Rule preventing local broadcast of football games unless every seat in the stadium is sold.

However, his statement that the Court’s action was “creating regulatory and legal uncertainty” is preposterous since they were using laws almost four decades old and one could readily consult the Napster decision for guidance. A better criticism, one I often levy, is that the laws themselves are out of date. But the law moves slowly, and that is often its greatest strength. Stability and predictability are good for both businesses and individuals so that one can genuinely avoid ignorance of the law.

The end result was that Aereo lost its case and filed for Chapter 11 Bankruptcy on 21 November 2014. That should be the end of it because the Court’s decision, delivered by Associate Justice Steven Breyer, was intended to be narrowly read. This is made clear in the syllabus with the words “the Court does not believe its decision will discourage the emergence or use of different kinds of technologies.”

How Does This Affect Me?

The short version is that it means you’re up a creek unless you have one of two things. First, you can have a cable account with recording capacity. Second, you can have internet access and an account with Hulu/Netflix/etc. and hope they carry the show you want. It means you can’t watch the shows you want on your own terms. Aereo helped people do that, but in the worst way possible: theft. The decision actively stifles innovation, both technologically and economically, and there’s not much that the average person can do about it. What we, as fans, can do, however is educate ourselves on how the law affects our fandoms and do our best either to work within the existing system or to change it for the better (I prefer the latter whenever possible).

What we need is the ability to purchase episodes and even whole series piecemeal. The technology is there as is shown by iTunes and similar services where a person can buy an individual song without getting the whole album. The proof of concept is already done; it just needs to be adapted to video.

So, make it work. Fans are often the most fervent advocates, more even than the stars and showrunners involved, and we can make this work. So let’s do it. Let’s put together a marketplace where content can be purchased legally and on our own terms. Everybody wins.

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J. Holder Bennett spends his time in the “real” world, whatever that means, as a history professor in North Texas. The rest of the time he focuses on his real love: fandom. For the past fifteen years he’s helped run A-Kon, an anime and manga convention in Dallas, and recently organized the Fandom and Neomedia Studies (FANS) association to bring together fans and academics for the better understanding of their mutual love. He has also done work on historical fiction and collaborated on analyses of science in cinema. Yes, he’s that guy.

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