The Aereo technology and litigation
offer several insights on how we will access video entertainment going forward
and who has superior bargaining leverage.
Once upon a time—back in the age of “appointment television,” broadcasters
controlled access to “must see” television.
We dutifully selected the network television channel at the appointed
time and watched knowing any repeat access option was also subject to great
specificity several weeks later.
The onset
of the analog video cassette recorder “empowered” viewers by facilitating time
shifting and multiple viewing options.
With digitization consumers have greater options for shifting content
between and among different recording and playback devices. So one trend favors consumers with greater
flexibility and the prospect of access to content anytime, anywhere, via any
device and in any format. Technology
agnostic consumers have little interest in the medium of delivery, but surely
expect on demand access to any and all screen: television sets, pc, smartphones
and tablets.
So far so
good, but no one should be surprised when content creators and distributors
responded in ways that lock down access and attempt to reestablish
control. While they failed to secure FCC
regulations mandating television set processing of broadcast flags limiting
content access flexibility, (American Library Assn. v. FCC 347 F.3d 291, 293 (D.C. Cir. 2003)) content creators
and distributors achieved success in restricting copying and device shifting
when the an HDMI cord handles the carriage, e.g., from a Blueray DVD player to
a television set or PC. Score one for the
incumbents who now can use Digital Right Management technologies to prevent
what might otherwise qualify as fair use, the right of consumers to make copies
and switch access between devices for private, non-commercial use.
Broadcasters
in particular score additional points when they successfully accrued billions
in retransmission consent fees for content they have to offer “free to air” for
the 9 percent of the viewers still using the broadcast spectrum option.
Copyright fees appear to matter more to broadcasters than advertising revenues
which arguably Aereo technologies would increase in light of possibly higher
ratings.
So along
comes a “disruptive” Aereo technology that mimics old school broadcast
television reception. The crux of the
copyright litigation lies in whether the reception design of Aereo sufficiently
mimics the private reception of public media via each dime sized antennas
routing content via the Internet. If the
Supreme Court views this reception as a private performance, then Aereo would
not incur copyright liability. There is
case law that suggests broadcasters have little control over content they “freely
broadcast.” Bear I mind that this stakeholder group has benefitted for so many
years with such benefits as free spectrum in light of their service in the
public interest. Converting free content
into content available only subject to a retransmission consent fee dilutes any
claim credible claim for such preferred status.
If Aereo
loses, perhaps broadcasters should lose the benefits of a status deeming them “trustees”
of scarce and valuable spectrum, including the billions that otherwise might accrue
by relinquishing control of some spectrum in an incentive auction.
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