Try as they might to make it seem otherwise, the commercial interests of MLB Advanced Media and Netflix are not co-terminus with the public’s interest in net neutrality.
Aereo’s greatest utility was the ability to watch must-see live TV on a phone or tablet in more or less real time, but that type of content makes up only a fraction of most broadcast channels’ lineups.
A recent letter from the Copyright Office shows how internet TV services like Aereo can’t win under a complicated system of regulations that appears biased against new technologies.
Aereo is back in court with a brand new legal theory for why it should be allowed to continue to operate. If it prevails, the implications could be nearly as far-reaching as if it had won in the Supreme Court.
The danger in laying down hard and fast net neutrality rules now is that they could lock in structural dynamics in the market for online content when we don’t really know how those dynamics will ultimately evolve.
To argue now that Cablevision’s “first instance” retransmission licenses somehow conferred immunity from liability on its second-instance RS-DVR service that is not available to Aereo, as the deputy solicitor general tried to is, is to assume facts not in evidence.
The outcome of the Aereo case could turn on whether a majority of the justices can get comfortable distinguishing Aereo from Cablevision, allowing them to craft an opinion that finds Aereo to be illegal without disturbing the result of the Cablevision case.
One proposal added to the draft bill to reauthorize STELA would eliminate the FCC rule requiring cable operators to separate the security components of the set-top boxes they lease to subscribers from the other functions of the device such as navigation.
The pushback from lower courts on both Cablevison and Aereo has been joined by a growing chorus of scholarly criticism of the Second Circuit’s reasoning and conclusions.
The channel-ization of the internet would make it easier to port the pay-TV business model — for better or worse — to broadband platforms.