In a decision this week the Supreme Court effectively pulled the rug out from TV streamer Aereo. The company is small, but the ramifications are big.
But part of the US Copyright Act of 1976 was written explicitly to prevent cable companies from doing that. In its ruling, the court found that Aereo functions like a cable company: “Behind-the-scenes technological differences do not distinguish Aereo’s system from cable systems,” justice Stephen Breyer wrote. As a result, the court found, Aereo’s service constitutes a “public performance” of television for which it needs a copyright license.
Aereo had argued that it’s more like an equipment provider: Its customers rent tiny antennas, which are connected to a DVR and attached to a very long cord. But because that cord is actually the internet, the case threatened to implicate other cloud technology, as well.
“The Court vows that its ruling will not affect cloud-storage providers and cable-television systems,” justice Antonin Scalia wrote in a dissenting opinion, “but it cannot deliver on that promise given the imprecision of its result-driven rule.” He mocked the majority’s finding that Aereo resembles a cable company, saying it would “sow confusion for years to come.”
Underlying the back-and-forth between Scalia and Breyer is a long-running dispute about how to interpret legislative statutes like the Copyright Act. Breyer’s interpretation takes into account that Congress, in 1976, intended to prevent more-or-less exactly what Aereo is now doing. Scalia—along with justices Samuel Alito and Clarence Thomas, who joined him in the dissent—think the only thing that matters is the strict text of the law.