OpinionOpinion L.A.

The Supreme Court's odd new standard: 'Looks like cable TV'

Television IndustryCourts and the JudiciaryPatents, Copyrights and TrademarksSatellite and Cable ServiceNapster Inc.
The Supreme Court focuses on the similarity between Aereo and cable TV, not the technical differences
Aereo's effort to circumvent copyright law could haunt other online service providers
Justice Scalia says the court created a new copyright category: companies that look like cable TV

The Supreme Court's smackdown of Aereo's local-TV-over-the-Internet service Wednesday should remind tech companies that the justices don't appreciate clever engineering.

At the oral argument, the justices' questions and comments hinted that they were outraged that Aereo would sell a pay-TV service to the public without paying broadcasters for the retransmission rights. To them, Aereo's technology served only one purpose: to dodge the obligations that federal copyright law imposed on cable operators.

Justice Stephen G. Breyer didn't say those exact words in the opinion he wrote for the court's 6-3 majority. But the sense that Aereo is a cable operator in sheep's clothing seeps through in much of his commentary.

Never mind that Aereo's technology delivers a different product than other pay-TV operators do. Aereo customers have access only to local over-the-air broadcasts, and unless they sign up for a second antenna, they can't watch one program while recording another. Nor does Aereo record programs on their behalf; if they forget to tune in or record it, it's gone. And finally, the service delivers shows to smartphones, tablets and other Internet-connected devices, not conventional TVs.

Such technology-driven differences were immaterial to the court's majority, which fixated on the surface similarities between Aereo's service and cable TV. Breyer declared repeatedly that Aereo should be treated as a cable TV operator because its service looked (to him) just like cable.

Perhaps the differences were easy to ignore because the justices had trouble grasping the technology. Breyer, for example, said during the oral argument that Aereo's tiny antennas could somehow "pick up every television signal in the world." Ummm, no. Aereo's antennas are no more capable than the kind consumers buy at Radio Shack, which means they are limited to local TV broadcasts.

Justice Antonin Scalia dissented, calling the new "looks like cable TV" standard a "result-driven rule" — in other words, a standard based not on existing law but on the outcome the majority desired. It's as if the justices got together and said, "This can't be legal," then found a way to make it not be.

The court's landmark ruling in MGM vs. Grokster, which put the kibosh on the file-sharing networks that emerged after the original Napster, had a similar results-oriented feel. But there the justices applied a statutory principle that, while little used in copyrights, was well known in patent law. And while the court's "inducement" principle didn't draw a nice, bright line between legal and illegal behavior, at least Justice David H. Souter's opinion offered some guidance on where the line falls.

In Aereo, as Scalia rightly noted, the court didn't specify what "looks like cable TV" means. Is it just a service that offers live TV to subscribers for a fee? Then all Aereo has to do, Scalia wrote, is to delay subscribers' ability to play their recordings for an hour.

The biggest problem is that the majority's ruling holds a service provider responsible for its customers' use of the technology. That's particularly bad here because those customers aren't violating copyright law by recording over-the-air TV for later viewing, an activity the Supreme Court blessed 30 years ago in the Sony Betamax case.

Again, the problem stems from the majority's dismissal of a technology-driven difference between Aereo and cable. The latter gathers programs from various networks via satellite and data lines, then pumps all of them into subscribers' homes. The former enables customers to tune an antenna to a specific program, direct it to a digital video recorder, then transmit it to themselves through the Internet. Nothing gets transmitted by Aereo without a customer's intervention.

In past years, Scalia wrote, appeals courts had repeatedly held that service providers do not infringe unless they choose themselves to do something that violates the act. The transmissions here may travel over Aereo's equipment, but the "volitional conduct" was the subscriber's, not the company's.

"It will take years, perhaps decades, to determine which automated systems now in existence are governed by the traditional volitional-conduct test and which get the Aereo treatment (and automated systems now in contemplation will have to take their chances)," Scalia wrote. "The court vows that its ruling will not affect cloud-storage providers and cable television systems ... but it cannot deliver on that promise given the imprecision of its result-driven rule."

In other words, Aereo won't be the only tech company regretting Wednesday's ruling.

Follow Healey's intermittent Twitter feed: @jcahealey

Copyright © 2014, Los Angeles Times
Related Content
Television IndustryCourts and the JudiciaryPatents, Copyrights and TrademarksSatellite and Cable ServiceNapster Inc.
  • California's initiative process could become more enlightened under this new law
    California's initiative process could become more enlightened under this new law

    It turns out that a legislative hearing can be simultaneously enlightening and pointless. Take, for example, Monday's hearing in Sacramento on Proposition 46, the measure on the Nov. 4 ballot to increase the cap on medical malpractice damages, and Thursday's on Proposition 47, the...

  • No on Proposition 45
    No on Proposition 45

    Angered by rapidly rising premiums for automobile insurance, voters approved Proposition 103 in 1988 to give the state insurance commissioner the power to veto unreasonable rate hikes for auto policies. Now, after years of premium hikes in health insurance, voters have the chance to extend...

  • Why so many voters care so little about the midterm elections
    Why so many voters care so little about the midterm elections

    The looming midterm elections, which will decide whether the U.S. Senate is run by Democrats or Republicans, has been called "the Seinfeld election," because so much of the campaign seems to be about nothing.

  • Congress should fund fires for what they are -- disasters
    Congress should fund fires for what they are -- disasters

    Californians are all too familiar with the devastation forest fires bring. The state has already had more than 1,000 wildfires this year, and the worst of the fire season is just beginning. More than 350,000 acres of national forest have burned in Northern California so far in 2014. And each...

  • A silver lining from the Isla Vista tragedy: New power to take guns from the unstable
    A silver lining from the Isla Vista tragedy: New power to take guns from the unstable

    The pro-gun crowd will be foaming, but Gov. Jerry Brown today signed into law AB 1014, by Assemblywoman Nancy Skinner (D-Berkeley), that will let family members or police seek a court order to temporarily remove lawfully owned weapons from the home of someone deemed at risk of committing...

  • Los Angeles leaves the flat-roof society
    Los Angeles leaves the flat-roof society

    Think of the nation’s most impressive skylines. New York City has Art Deco points atop the Empire State and Chrysler buildings and the spire capping the new One World Trade Center tower. Besides the soaring Willis Tower (formerly known as the Sears tower), Chicago’s skyscrapers...