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Sense and Copyrightability

Mon, 03/24/2014 - 6:42pm
Brian Santo

There’s what’s legal, and then there’s what makes sense. The video services market hasn’t made sense in a long time, and this thing with Aereo is underlining the fact.

Is Aereo legal? Several lower courts have said “yes.” One said “no.”

It should be.

If Aereo is illegal, it is because it violates the copyright of broadcasters. That’s what the broadcasters are arguing: Aereo violates our copyrights.

That there are lawyers and judges who buy the argument that copyright is involved notwithstanding, it doesn’t apply with Aereo. It just doesn’t. It’s appalling this nonsense is going to the Supreme Court.

Broadcasters provide over-the-air (OTA) broadcasts for free. If a citizen turns on his or her TV and records the broadcast, it’s legal. Period.

If a viewer sells his TV to somebody, but gets to keep it in his house and watches it, is he violating copyright? No.

If a viewer sells his TV and his DVR to somebody, but gets to keep them in his house and he watches a TV show and records it, is he violating copyright? No.

Is it illegal if a viewer borrows a TV and a DVR? No. Is it illegal if a viewer rents a TV and a DVR? No.

Ownership of the equipment is irrelevant. Aereo owns antennas and it owns recording equipment and its subscribers rent them. Aereo should be able to win this argument even without the network DVR decision won by Cablevision.

The fact that OTA broadcast stations are also carried on cable systems is thoroughly and absolutely irrelevant to Aereo – Cablevision is absolutely irrelevant to Aereo, and even if five Supreme Court Justices disagree I still won’t buy the argument.

I’m pulling for Aereo, not because I love Aereo, but because I hate the stupid knots in the law regarding TV. If you’re providing nDVR, you have to keep a separate copy per subscriber of any given title. Maybe that’s legally defensible, but it makes no sense because it’s technologically pointless. Broadband is an information service, not a communications service? Idiocy.

Aereo violates copyright? Spare us all. 

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