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Inside the Aereo Copyright Controversy
Dialogue with the Alter Ego on a US Supreme Court’s ruling, first drafted on June 27,
published on June 29, 2014

    Today’s decision by the United States Supreme Court is a massive setback for the American consumer … [and] …
    sends a chilling message to the technology industry. … [In fact, it] … begs the question: Are we moving towards a
    permission-based system for technology innovation? Consumer access to free-to-air broadcast television is an
    essential part of our country’s fabric. Using an antenna to access free-to-air broadcast television is still meaningful
    for more than 60 million Americans across the United States. And when new technology enables consumers to
    use a smarter, easier to use antenna, consumers and the marketplace win. Free-to-air broadcast television should
    not be available only to those who can afford to pay for the cable or satellite bundle.

    Excerpt from Aereo’s reaction to the US Supreme Court ruling

Question by Alter Ego of Noah denkt™ (AE): On June 27, the US Supreme Court ruled in a split decision (6:3)
against Aereo, a tech start-up from New York City, which offers an antenna-plus-cloud-storage technology that
allows customers to capture live, over-the-air network TV content and stream it down to their computers. The
Court argued that such a service violates the copyright of TV broadcasters and their distributors and is illegal if
operated without paying broadcasters any fees. This ruling has caused
a lot of uproar in the tech community.  
The industry fears that this decision could hamper technological innovation, particularly in the field of cloud
computing and give undue preference to old industry interests and yesteryear intellectual property concerns.
Does Noah denkt™ have an opinion about this?

Answer by Noh denkt™ (Nd): Well, we have tried to get up to speed with the intricacies and implications of this
Supreme Court decisions. Obviously, we are neither technology nor legal experts. But we have common sense
and that’s why we can’t help but be surprised about the outraged disbelief that the Aereo decision has
provoked in the tech community. Is it not clear that those who own the rights to a content should be adequately
compensated for granting access to that content?

AE: In the embattled field of digital copyright protection, the Supreme Court tends to differentiate between
private and public performances. Private performances generally don’t pose a copyright problem while public
performances do.

Nd: Right. So, where is the problem?

AE: Well, the entire cloud-computing industry, including Aereo, is operating under the notion that streaming
services are abiding by copyright law since the legally obtained streaming content is delivered at the request of
one specific individual to that very individual in private.  In other words, there is no public performance here.
And Justice Scalia has validated this view in his dissenting opinion. Obviously, the majority Court vote in the
Aereo case puts that private performance premise on the docks again.

Nd: To our small brain it seems as if we are mixing up various issues here. Supposedly, not all cloud computing
companies have a business model that is essentially build on the idea of capturing other companies’ content,
correct? So where is the challenge to the entire streaming business? Secondly, the private performance notion
in the Aereo case is obviously put into question by the mere fact that it is content created for public
performance which is being streamed to albeit actively requesting individuals. But, - and that is a big “but” -, this
servicing of individual streaming requests happens on an industrial scale. We are, hence, scratching the line
towards a public performance at least twice here. That somehow changes the nature of the service, don’t you
think? And thirdly, no one is telling Aereo to go out of business. It could still sell its technology and intellectual
property to the broadcaster or pay them a certain fee to use their content.

AE: First, the current ruling may require all streaming services to make sure that none of their cloud-stored
content has been copied illegally.  In other words, cloud operators would have to sniff around into what
customers store on their cloud. That’s not a great prospect, is it? Secondly, scratching the line towards public
performances doesn’t mean crossing it. And thirdly, it has been made clear by Aereo that it doesn’t have the
funds to pay for the captured TV content.

Nd: Let’s not get hysterical here. The overall business model of a cloud computing company gives a meaningful
indication whether there is reason to be worried about structural or habitual infringement of copyright law.
Secondly, when in doubt we should err on the side of the protection of intellectual property and copyright and
not on the side of what can be done technically. And thirdly, as far as Aereo’s future is concerned it should be
just as much about execution as business savvies have us believe is the case in all other business ventures.
AE: Why should we err on the side of copyright protection when it is innovation that our lackluster economies
needs so desperately?

Nd: Because it is in the interest particularly of innovators that their intellectual property rights be treasured and
respected. Why would anyone want to go to the extremes of creating something if he can’t expect that his work
may get duly accredited and compensated?

AE: Creators create things because that’s the way they are. They have to do create.
It is like an obsession or a
curse that is driving them. And that is particularly true for those who create content. Compensation is only of
secondary importance to them. In fact, you could argue here, that for content creators it is more important to
get exposure and attention than copyright protection. After all, it’s a hassle to get noticed anyway.

Nd: But you still want credit for your work, don’t you?

AE: You want market share more than credit. Because the credit comes with market share. See how Facebook
became what it is today…

Nd: In the Aereo case, however, the content creators already have market share. After all, they are firmly
lodged with the broadcasters. So what good does more bona fide market share work do to them?

AE: Well, at least they are helping a new technology to piggy-bag their success.

Nd: So, you are talking charity now. But in charity, you are free to donate. What you are advocating here is a
forced donation. It is, therefore, no longer charity you ask but regulated theft you want to impose. And we won’t
be part of that ….
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