Aereo: Columnists question SCOTUS' tech chops, ruling's impact on DVRs

The handwringing following one of the biggest media-technology court rulings in decades continued Friday, with columnists at major daily newspapers and technology blogs pondering the ruling's long-term impact on innovation, as well as widely accepted technologies like the DVR.

"The Supreme Court, which ruled 6-3 that Aereo's streaming service infringed on broadcasters' copyright, was not just wrong. It was terrible, stupid and misguided," opines Jeff John Roberts, a former lawyer who serves as a legal analyst for Gigaom.

"First, there's the slapdash legal reasoning that led the court to declare that Aereo engaged in a "public performance" when it rented antennas and DVRs that let consumers watch and record over-the-air TV," Roberts adds. "By the letter of the law, Aereo clearly did no such thing--but the good judges swept this aside with what the dissent rightly called "an improvised standard ("looks-like-cable-TV") that will sow confusion for years to come."

With Justice Stephen G. Breyer among those who compared Aereo with cable TV "pooh-poohing" the technological distinctions between the two technologies, the Los Angeles Times' Joe Flint writes that the High Court set an unsettling precedent.

"As dissenting Justice Antonin Scalia observed, the majority glossed over a crucial detail: Aereo may be providing the equipment, but its customers are the ones transmitting the programs. By shifting responsibility for those transmissions to Aereo because it "looks like cable," Scalia wrote, the court threw into doubt a long-settled principle that technology providers don't violate copyrights just by enabling others to do so," reads Flint's Friday-morning op-ed piece.

According to Roberts' Gigaom colleague, network infrastructure reporter Derrick Harris, the ruling could even undermine technologies that are widely accepted and have long been considered legal, such as the digital video recorder.

The court explicitly said its ruling didn't apply to cloud storage, Harris notes. "But that doesn't mean all cloud-storage services are safe.  Many people assumed the issue of digital video recorders was settled after the Supreme Court denied to hear Cartoon Network's appeal in a 2008 case against Cablevision, but the Court's language in Aereo suggests it would be willing to hear a case about DVRs should the right one appear. Even Antonin Scalia, who has been unduly heralded as a would-be savior for innovation for his dissenting opinion in Aereo, made that pretty clear.

In issuing his dissenting opinion, Scalia noted, "I share the Court's evident feeling that what Aereo is doing (or enabling to be done) to the Networks' copyrighted programming ought not to be allowed. But perhaps we need not distort the Copyright Act to forbid it. As discussed at the outset, Aereo's secondary liability for performance infringement is yet to be determined, as is its primary and secondary liability for reproduction infringement."

For more:
- read this GigaOM story and this story
- read this Los Angeles Times story
- read this Bloomberg story

Related links:
More Aereo aftermath: ACA 'disappointed' by ruling, Diller says 'it's over'
High Court does what TV Everywhere failed to do: stop Aereo
Aereo loses Supreme Court decision, 6-3

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