The news media seem to always be surprised by the decisions handed down by the Roberts court. One can’t help but recall the TV reporters gasping that the Affordable Care Act had been deemed unconstitutional, only to hastily correct themselves when they bothered to turn to page 2, then 3, and so on into absurdity. The recent McCutcheon case seemed to create something akin to surprise, but it was more surprise that they would actually double-down so blatantly on the plutopian™ vision created by Citizens United, and less that anyone thought they’d suddenly resolve to change the course of their erosion of our democratic process. People were really quite dumbfounded by the reversal of key provisions of the Voting Rights Act, but hey, when was the last time you saw discrimination? Ditto the Affirmative Action deal for Michigan last week.
The case that has really got my attention, however, is ABC v. Aereo, which could affect one of the more important pillars of American identity: TV.
Aereo is a “tech” company that has kind of weasled its way into a gap in copyright law whereby they use thousands of tiny antennae to capture and record broadcast TV signals, and then allow customers to stream programs on their devices whenever they want. This has the “broadcasters” kind of worried. If I start making tapes of shows and selling them to the folks at the farmers’ market I’d be sued and jailed right quick. But my understanding is that Aereo says their little antennae are rented to individual subscribers, and since those subscribers are viewing programs privately, Aereo claims it is not distributing programs, just saving them for a subscriber’s “private” viewing, like on a DVR, VHS tape or betamax. This has ABC and other broadcasters very concerned, because this could open the door for legal challenges from cable providers, who pay billions in fees to the networks for the rights to carry their programming.
My initial prediction is that Aereo will be ordered to cease by the Supreme Court. My hasty reasoning is because the Roberts court would never allow a large corporation to lose revenue due to some little “tech” innovation, and anything that erodes consumer choice and saves them a little money seems to have little chance in this country these days.
But there are also some pretty dire side-effects predicted if Aereo is killed. This could create serious upheaval in the world of U.S. copyright law, perhaps calling into question the legality of cloud and data services such as Dropbox. And let’s not forget the concerns of the other large and powerful corporations that could benefit if Aereo was allowed to live on: cloud computing outfits and perhaps even cable companies.
I don’t think anyone should underestimate the Roberts court’s ability to come up with crazy explanations for their decisions. (Racism and corruption are over, right everyone?) It may be fun to live through years of telecom/copyright lawsuits, and that seems very possible if Aereo is shut down, but that could also effectively kill tech innovation in the U.S., and I don’t really think even the Roberts court is unaware that that is possible, but I wouldn’t bet my startup on it.
So I think Aereo will die. But hey, I may yet be surprised.