The good, the bad and the Aereo

Some initial thoughts on the Aereo decision:

1. It seems pretty remarkable, given how Aereo came to be in the first place, that the only mention of the Cablevision remote-DVR case in the court’s 6-3 ruling comes in the dissent. The entire design of Aereo’s system, with its tiny antennas and individual copies, was unabashedly based on the Second Circuit’s legal reasoning in the Cablevision case, and it seemed clear during oral arguments in that the justices were wrestling with whether they could rule against Aereo without upsetting the result of the Cablevision case or casting a pall over the cloud computing generally.

Justice Stephen Breyer seemed particularly exercised over the point, complaining to Paul Clement, attorney for the broadcasters in the case, “I will be absolutely prepared, at least for argument’s sake, to assume with you that if there were ever anything that should be held to fall within the public performance, [Aereo] should be… But then the problem is in the words that do that — because we have to write words – are we catching other things that really will change life and shouldn’t, such as the cloud?” Yet in his majority opinion he doesn’t mention Cablevision at all and he dismisses concerns about the cloud by saying in effect: well, that question really isn’t presented in the Aereo case after all.

Well knock me over with a feather. Could have sworn you said it was just a couple months ago. Whether Breyer’s punt will really fly in future cases involving remote storage and access is very much an open question.

2. Legal scholar James Grimmelmann told the website Vox “the reasoning of Cablevision is dead.” How long before the broadcasters’ decide to test that proposition by going after cloud DVRs?

3. Bad cases make bad law, and Aereo is a case in point. Notwithstanding its self-conscious pose as a champion of (now martyr to) innovation, there was nothing particularly innovative about what Aereo did or how it did it, apart from the legally innovative workaround to copyright law on which it based its business model. Streaming video was not an innovation; streaming broadcast programming was not an innovation; even Aereo’s novel use of tiny antennas may not have been as innovative as it claimed if you believe the many disinterested engineers who argue the antenna didn’t/couldn’t really operate as advertised. As a practical matter, it was a clumsy, inefficient, non-scalable way to stream broadcast programming. It was designed that way to prove a legal point, which it has now lost, not to create a real business or provide a real world solution for consumers. In the process of losing that legal point, however, it may have lost much more.