Digital Analogy: Behind the Scenes of Aereo Blog about trademarks, brands, copyright and free speech by lawyer Ron Coleman. Since 2005!

Written by: Matthew David Brozik

“In a case with far-reaching implications for the entertainment and technology business, the United States Supreme Court ruled on Wednesday that Aereo, a television streaming service, had violated copyright laws by capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee. …

Justice Stephen G. Breyer, writing for the majority, said the service was ‘not simply an equipment provider,’ but acted like a cable system in that it transmitted copyrighted content.” – The New York Times

Breyer, J.: We must decide whether the respondent infringes the exclusive rights of copyright owners by selling subscribers a technologically complex service that allows them to watch television programs over the Internet at about the same time as those programs are broadcast over the air.

I am of the opinion that, viewed in terms of Congress’ regulatory objectives, the behind-the-scenes technological differences do not distinguish the respondent’s system from cable systems, which need to get permission to broadcast copyrighted content. Even though cable systems depend in large part upon the use of cables—whereas the respondent does not—the respondent’s set-up is essentially the same.

Sotomayor, J.: Aren’t cables just bundles of wires, though? I believe that they are. And we heard testimony that the respondent’s physical set-up—the machines in a warehouse in Brooklyn—does use components that themselves have wires. It would seem to me, then, that the respondent effective admitted that its system depends on cables, and therefore the conclusion that the respondent’s system is a cable system is not at all a hasty one.

And I graduated with honors from Princeton, albeit with a degree in History. But it’s not as if this is a complicated technological question that requires any specialized knowledge to answer.

Roberts, C.J.: I agree with my colleagues that the respondent’s electrical contrivance is basically a machine built to infringe upon the exclusive rights of copyright owners, but I take issue with the comparison of the respondent’s apparatus to a cable system. To my mind, the respondent’s appliance is most like an artificial satellite, and specifically Sputnik 1. As my brothers and sisters on the bench will recall, the so-called “Elementary Satellite” boasted four external radio antennas to broadcast radio pulses.

Similarly, the respondent houses thousands of dime-sized antennas, each of which receives a television broadcast, which a transcoder then translates into data that can be transmitted over the Internet. We can not risk another so-called “Space Race.”

Kennedy, J.: Judge Roberts, I remember Sputnik. I knew Sputnik. Sputnik was a friend of mine. Judge Roberts, the respondent’s system is no Sputnik. The respondent’s system is more like——

Roberts, C.J.: That was really uncalled for, Judge Kennedy.

Kennedy, J.: You are the one that was making the comparison, Judge Roberts. Frankly, I think that the respondent’s system and the Soviet Union’s polished metal sphere—the one whose launch ushered in an age of new political, military, technological, and scientific developments—are so far apart in their objectives that I’ve completely lost my train of thought. No, wait! I remember: The respondent’s system is like a steam locomotive, and railroads were very good for America. I vote to acquit.

Kagan, J.: There’s an old saying: “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.” I have given the respondent’s system, as it was described and explained to us in detail by lawyers for both sides during oral argument, and as the records of the Patent Office illustrate it, and I have reached the conclusion that what we’re talking about here is a duck.

But I mean that literally. The respondent’s system is an actual duck, in that it is a waterbird with a broad blunt bill, short legs, webbed feet, and a waddling gait. Interestingly, ducks themselves are often confused with several types of unrelated water birds with similar forms, such as loons, grebes, gallinules, and coots.

Breyer, J.: I have been called a “coot,” a term that I understand means “a foolish or eccentric person, typically an old man.”

Ginsburg, J.: Did you guys used to watch “Quantum Leap”? I loved that show.
That was based on a true story, you know.

Scalia, J.: The question we’ve been asking is whether the respondent is more like a copy shop or a video-on-demand service. In truth, though, it is like neither. Rather, it is akin to a copy shop that provides its patrons with a library card:

The respondent offers access to an automated system consisting of routers, servers, transcoders, and dime-sized antennae. Like a photocopier or VCR, that system lies dormant until a subscriber activates it. When a subscriber selects a program, the respondent’s system picks up the relevant broadcast signal, translates its audio and video components into digital data, stores the data in a user-specific file, and transmits that file’s contents to the subscriber via the Internet—at which point the subscriber’s laptop, tablet, or other device displays the broadcast just as an ordinary television would.

Alito, J.: That… that was amazing, Judge Scalia. You just described the respondent’s system perfectly, despite the fact that you were born in 1936. Color me impressed.