Aereo Decision by US Supreme Court Throws Digital Rights into 'Cocked Hat'

By Peter Bernstein June 26, 2014

In case you missed it, the U.S. Supreme Court in one of the most widely anticipated decisions regarding technology this session, ruled in 6-3 decision in AMERICAN BROADCASTING COS., INC., ET AL. v. AEREO, INC., FKA BAMBOOM LABS, INC., that Aereo, a start-up streaming service, had violated copyright laws by capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee.  

While the defeat, as many have observed, casts doubt the future of Aereo which as Napster went away for similar if not identical reasons involving rights to use years ago, the realities, as my colleague Gary Kim points out, the decision may have raised more questions than it answers.  Those in the cloud-based storage and content delivery services industry have already voiced concerns about how this decision is likely to stunt the growth and future innovation of their sector. And, a ready of the majority views on the case certainly gives them reason for concern.

Let’s face it, the entire area of digital rights, i.e., who can get compensated when and how and under what conditions thanks to the global ubiquity and popularity of the Internet is a wild frontier where not just commercial but geo-political interests are at stake.  It is also an area where it is clear the law is not in tune with the times. We literally, figuratively and virtually now have an instance where clarity on the issue is problematic and the entire realm of digital rights is in the proverbial “cocked hat.” 

Putting aside the legal niceties as to what may or may not constitute a “public performance”; the ruling got me to thinking about the broader subject of content creation and compensation. The reason is the history of the protection and use of intellectual property (IP) is filled with businesses building commercial powerhouses based on charging somebody for someone else’s “free” content.  A good example is of course Google, and for that matter all of the social media companies. 

Yes when we put something online, especially post our latest video to YouTube we understand that it is in essence in the public domain and Google, as the web’s almost de facto librarian gets fees from advertisers who hope to snag our attention when we are surfing Google indexed content and YouTube videos.  Indeed, to their credit they have been ingenious in the multiple ways to make free content work for them, and we willingly indulge them knowing well the consequences of our agreeing to their terms and conditions given the tradeoffs off of having our IP get more visibility.  

While I am a true believer in the right for anyone to earn and honest and contractually agreed upon living, what bothers me, given the ability these days to provide people with micro payment capabilities is why somebody has not come along to provide me compensation for my video postings. After all they have no viable business model without you and me allowing them to use not just out IP but our image as well.

I also have to chuckle a bit about the broadcasters being the ones protesting. When was the last time you watched a newscast where there was not something that was either appropriated from YouTube or submitted free to a broadcaster.  While they may have lawful consent to use this content for commercial purposes, and make money off of it because in theory it helps attract viewers, which helps attract advertisers, I feel like they should deal me in.

As the velocity of self-generated content of all types increases, we all should think about with whom and how we decide to “share” our IP.  Maybe the founders of Aereo can go back to the drawing boards and come up with a service where compensation to the content creator is part of the package. My suspicion is that the amount of content flowing to a company that pays-to-play would put pressure on the free sites.

While I wait/hope for the day to arrive when all of us have the option of the proposed service, how the Aereo case sorts itself out in the market will be fascinating. Champions of Internet innovation are not going to take no for and answer. As in the movie “Jurassic Park”, it is hard to imagine that life will not find a way. 




Edited by Maurice Nagle
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