Broadcasters' Lawyer Lays Out Every Bogus Trope Possible Against Aereo

from the how-to-be-totally-uninformed dept

Neal Katyal, a former Acting Solicitor General of the US, and (more importantly) a lawyer hired by the broadcasters to help with their case against Aereo, has written one of the most ridiculous opinion pieces yet about Aereo, published over at the Hollywood Reporter. It basically reiterates every bogus copyright maximalist trope there is in this particular fight, and apparently demonstrates that he was paying attention to very different Supreme Court oral arguments than the rest of us.

First, he pulls the trick we discussed recently in which he pretends that complying with the law is somehow circumventing the law. Then he does that thing where he completely hand-waves away the claim that a ruling against Aereo won't impact cloud computing, by just insisting that they're different, without bothering to deal with (as many of the Justices pointed out in the oral arguments) that there's a real problem with declaring Aereo a public performance, as there's no clear way to distinguish it from cloud computing.

But the real problem with Katyal's reasoning is the "but if they were serious they could just get licenses" argument:

Licensed services like Netflix, Amazon and iTunes play by the rules, and that means their services are not at issue here. In fact, these services provide concrete evidence that refutes Aereo's vague threats about "innovation" writ large. These services developed because of licensing – not despite it. And they continue to thrive today, to the benefit of the public and copyright holders alike, because they deliver something valuable to consumers – not just a way to circumvent the law.

Aereo, on the other hand, is an illegitimate, unlicensed streaming service. It grabs broadcasters' signals from the airwaves without paying for them, stores user-specific copies of that programming in its servers, and then delivers that programming over the Internet live or on-demand for a fee. Aereo would prefer that everyone just focus on that second function (storage) but disregard the other two (theft and transmission).

Except that nearly everything above is misleading to inaccurate (sometimes in the extreme). Aereo plays by the rules too -- the rules that allow people to time shift and place shift over the air broadcasting, which is provided for free to the public, supported by advertising (and an enormous grant of free spectrum to the broadcasters from the public, supposedly for the public good). The fact that Netflix, Amazon and iTunes license other content has no bearing on the actual legal issue of whether or not providing the same piece of content to multiple parties (even if they are individual copies) is a "public performance." That some businesses do a different thing another way is not the issue. The issue is how a ruling that this represents a public performance will massively increase liability on any company that stores and transmits the same content to multiple people.

And, Aereo also seems to deliver something valuable to consumers. I've spoken to many Aereo customers and they all absolutely love the service.

As for Katyal's ridiculous claims of "theft" or "grabbing" -- that's just rhetoric used to mislead. These are over the air signals, and it's perfectly legal to "grab" those signals as the Supreme Court made clear in the Betamax case that Katyal must surely know about. Similarly, it's perfectly legal to transmit such content over the internet, via something like a Slingbox, so long as it's done privately by an individual for his or her own account. And that's what Aereo has set up for consumers -- a service to do what is clearly established as legal.

At the hearing, the Justices asked about these critical differences between Aereo and legitimate cloud services. They repeatedly mentioned the line between merely passive storage, on the one hand, and active content-distribution services, on the other. Aereo falls in that second category, which is why this case does not implicate cloud storage services. And it does not have a license, which is why this case does not implicate iTunes, Amazon or other legitimate streaming services on the content-delivery side of the line.

Katyal appears to be under the misconception that the "worries" about how this could impact cloud computing are people worrying about how it impacts iTunes or Amazon Prime's streaming service. They're not. They're worried about how it impacts things like iCloud or Amazon's S3 services, in which people store content on far away servers. Based on the arguments of the broadcasters, Apple and Amazon may be implicated as providing a "public performance" of content that people choose to store and stream from those services -- unrelated to the "licenses" that they have for their other services. It's kind of amazing that Katyal can be so confused about this.

Delivering on-demand streaming of copyrighted programming for a fee is the quintessential public performance.

I store plenty of (authorized) music MP3s on Amazon S3. And I stream from there. I pay Amazon for that service. But Amazon has not licensed those works. Yes, Amazon has licenses for its digital music, but these are not songs purchased from Amazon (some aren't even available on Amazon). But Katyal appears to be claiming that my storing of content and streaming it is a public performance. And that's exactly the problem we're talking about.

Katyal keeps insisting that Aereo is selling the content. He's wrong. They're selling the service of enabling people to access content that is available free, over the air. It's a classic case of ignoring the value of the service, and insisting 100% of Aereo's value is the content.

Much is at stake in the Supreme Court's decision in this case. Broadcasters invest billions of dollars to create, acquire, and distribute the most-watched video programming in the country, and perhaps even the world.

... And then they give it away for free via over the air broadcasts. And nothing that Aereo does impacts that market at all. The broadcasters' real problem, which Katyal doesn't mention because it would expose the sheer ridiculousness of his argument, is that the broadcasters have become fat and happy based on cable and satellite retransmission deals. That's what they're really fighting over, though they don't want to admit it. Notice that nowhere does Katyal admit that all of the content in question is broadcast free over the air? I wonder why...

I recognize that Katyal is a high powered lawyer who used to be the Solicitor General, but the broadcasters really ought to spend their money on someone slightly more convincing.

Filed Under: circumvention, cloud computing, copyright, neal katyal, public performance
Companies: aereo