Supporting Aereo Means Supporting Innovation Over Entrenched Interests


Today, we joined EFF, Public Knowledge, and CEA in filing a brief at the Supreme Court in favor of Aereo–the innovative company that allows you to watch television at any time, on any internet-enabled device.

Aereo’s product is thousands of dime-sized antennas, each one assigned to a customer who can use it to watch over-the-air television on-demand through the cloud. This Barry Diller-backed service has proven to be a good idea, and one that consumers want.

But enter the broadcasters who can’t stand the threat to their business model. Instead of competing with Aereo in the marketplace, they took the company to court, accusing Aereo of copyright infringement.

The argument is as follows: copyright law gives a copyright holder the exclusive right to “publicly perform” its content, so in retransmitting the broadcasters’ signals, Aereo is infringing the broadcasters’ copyrights. This is wrong. As a lower court already found, Aereo’s system of personal antennas and video streams allows individuals to make non-public transmissions of free broadcast channels that they may already access in their private homes independent of anything Aereo does. As such, no copyright violation.

The stakes here are high: if Aereo loses, it will likely have to shut its doors -- bad news for Aereo, bad news for its customers, bad news for innovative companies that want to follow in its steps, and I’d argue even bad news for the broadcasters--companies that can’t figure out how to deliver a product customers really want.

History should be a guide. In the early 1980s when the VCR first entered the market, the movie studios were less than pleased. At the time, the president of the Motion Picture Association of America famously told Congress: "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." There, like here, the movie studios sued for copyright infringement, and the case ended up before the Supreme Court. In a 5-4 vote, the Court found the VCR legal. That’s right--we were only one vote away from no VCR.

And, of course, the VCR not only proved to be an incredibly popular product, it was also good news for the movie industry. In fact, once VCRs were found in homes across the country, the market for home movies exploded and the industry found itself reaping the benefits.

It’s important to any entrepreneurial ecosystem that we allow innovative and disruptive products into the marketplace--whether it’s the VCR, Aereo, or who knows what else. Incumbent players that are often slow to innovate (anyone remember how long it took the record labels to realize people wanted digital music?) do everyone a disservice when they chose to fight in court instead of in the market.

Aereo has significant backing so it’s able to fight back. But litigation battles easily cost millions of dollars, and taking on a fight like this would be incredibly difficult for a smaller startup. So, we support Aereo and have asked the Supreme Court to keep the doors to competitive innovation open in the over-the-air television space, and in doing so set a precedent for more innovation generally.

This case is just the latest in a long history of entrenched interests trying to expand the scope of copyright law to shut down competition. The VCR case was another example, and so was the proposed SOPA bill we successfully shut down. As this case and others progress, we’ll be watching closely and working hard to stem this dangerous trend. Congress has indicated plans to overhaul U.S. copyright laws in the next few years--we hope they do it in a way that protects the interest of entrepreneurs nationwide.