Copyright, while meant for creators, is always in danger in becoming the incumbent-protection-act for the media industries. Yes, the law is clearly supposed to benefit authors of all kinds, artists, composers, and filmmakers, a noble purpose. But long experience has shown that it can also be used as a tool for protecting existing business models, like our current pay-TV system driven by NBC, Fox, and CBS, and their distributors, like Comcast and Time Warner Cable.
It should be the job of the courts in general and the Supreme Court in particular to prevent copyright from becoming a mere tool of the existing media industries. Unfortunately in its Aereo decision, the Court failed. Instead, the Court has let the copyright law be used to protect not an author or creator, but a set of established distributors, at the expense of a company who stood to shake up how the industry does business. The losers are innovators and the consumers they hoped to serve.
Here’s the story. Free, over-the-air TV is available to anyone willing to put up an antenna. Aereo’s idea was to lease tiny antennas to its customers, and thereby make it easier for people to grab the signals and bring them home. In fact, you could easily duplicate Aereo’s service by putting an antenna on your roof; Aereo’s idea was just to make that task more convenient, by acting as a virtual antenna installation man. (I am reminded slightly of the service that sells quarters to people who want to do laundry). The Supreme Court, however, bought the argument that Aereo had gained an unfair advantage over the cable industry, when it gave consumers what is, in fact, already supposed to be theirs—free, over-the-air television.
The underlying legal question was complex; but most observers agree that the law was written before Aereo was invented and could easily have been read either way, as both Justice Scalia’s dissent and the lower courts made clear. What the Supreme Court really faced, therefore, was a question of industrial policy, not of legal interpretation. It faced the same kind of question it did in 1984, when many of the same established players said that the Sony Betamax VCR should be condemned for facilitating copyright infringement.
Back in 1984, the Court got things right, siding with the innovators, despite predictions that the sky would fall. This time, instead of favoring a disruptive market entrant, the court has chosen to buttress the existing cable television model. And the immediate consequence of its decision is that Americans will continue to pay too much for television for longer.
Aereo has proven incredibly popular for one reason: Cable television is too expensive for the casual television watcher. Some people have no problem paying $150+ a month for hundreds of channels. But others just want the basics—what you can get on a good antenna. Some of these people do install antennas. Those who wanted an easy way to lease an antenna relied on Aereo. Now, thanks to a lack of vision on the part of this Court, they are out of luck.
Tim Wu is a professor at Columbia Law School, and the author, most recently, of The Master Switch: The Rise and Fall of Information Empires. He is running for liutenant governor of New York.