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House Aereo

House Aereo

As I mentioned in my "Anytime, Anywhere, Any Device -- Advanced Mobile Developments" NAB Super Session panel, the biggest news was HBO GO falling over during the Game of Thrones season premiere, its second in the past couple of months. I anticipated that the rest of the month would be spent discussing King Joffrey’s wedding, Arya and Jamie’s new “golden” fist. However, April has been a different Game of Thrones, but one without the sex, violence and dragons; instead, it’s Aereo’s sigel (antennas and airwaves) being challenged by the broadcasters sigel (cables and satellites).

On Tuesday, SCOTUS heard oral arguments on American Broadcasting Companies, Inc. v. Aereo, Inc. With the court of popular opinion varying wildly, Aereo CEO Chet Kanojia stated that a decision against Aereo “may mean the end of our company.” Others have stated that this isn’t just a case of copyright but of the legality, nay future, of cloud computing.

The sky is not falling.

This is a debate about consumer preference, copyright laws, and how business models and law become antiquated against an ever changing landscape of technology; this isn’t a debate about cloud computing and whether we will continue to be able to legally use DropBox. And this isn’t about innovation.

Chief Justice John Roberts summed it nicely when he answered himself, "But is there any reason you need 10,000 of them? Can't you put just ­­-- if your model is correct, can't you just put your antenna up and then do it? I mean, there's no technological reason for you to have 10,000 dime­sized antenna, other than to get around the copyright laws."

The U.S. Court of Appeals for the Second Circuit agreed with Aereo in April 2013, but dissenting Judge Denny Chin responded that Aereo was a "Rube Goldberg-like contraption using miniature antennas and unique copies to flout Congress's licensing regime."

When described to both technologists and laymen, Aereo’s approach of creating antenna farms (with individual antennas that are dynamically assigned/rented to capture broadcast content from the airwaves and store it digitally on cloud DVRs) and offer this to consumers through a subscription basis is... neat... interesting… it’s a great hack. But it’s not a great definition of innovation when viewed under the microscope of common sense.

In 1999, it was hard to find someone who didn’t use Napster. It was new. It was neat. It was disruptive. Was it innovative? Most would argue yes, as the general concept of peer-to-peer file sharing had many uses for both consumers and enterprises. Napster’s ambition, while bold, was clearly thumbing its nose at copyright law.

It’s hard to imagine Aereo’s approach being viable outside of this very specific situation, i.e., to circumvent retransmission fees and thus to act as a middleman -- an aggregator of broadcast content -- for as many consumers as possible. Some have suggested that Aereo itself is acting as a cable/pay TV company. Sounds like it, doesn’t it? Individually, the consumer doesn’t seem to be doing anything out of the ordinary, as one can purchase an antenna and write their own service on AWS to accomplish a similar goal. However, providing this to tens of thousands of consumers is not a question about the actions of the individual, it’s about the intent of the middleman.

I may certainly be on the losing side of this argument when we hear back from SCOTUS. I will no doubt have little to counter the opinions of Justices Roberts, Sotomayor, Scalia, Ginsburg, et al.

While we watch from the sidelines, this is important as it highlights the need for change within the television ecosystem and it further underscores the consumer demand for content anytime, anywhere, and on any device, in whatever bundling, or unbundling, of programming they prefer. These are issues that will take time to resolve.

Technology, for the most part, is the simpler of the issues to address, though satisfying all parties when it comes to content rights and business models, much like the path to the Iron Throne, will not be without conflict, time, winners and losers.