Whistling duck quack

Quacks like a duck

We’ve been following the fortunes of tiny Aereo vs. the big broadcasters here at Over Easy. You may remember that Aereo doesn’t require rabbit ears or a rooftop antenna — customers rent (for about $8 – $12 per month) a dime-sized antenna in a vast array of TV antennas at an Aereo-owned location that pick up over-the-air broadcast signals and offer a very high speed Internet connection to a DVR-type device in the “cloud.” But on June 25 the Supreme Court effectively killed off Aereo with a 6 to 3 opinion [PDF] that is fairly summarized as a “looks like a duck” test.

When cable companies were first around, they started rebroadcasting network television to their cable subscribers, and the Supreme Court ruled that this was perfectly legal. So the broadcasters ran complaining to Congress, which changed the law to require cable companies to pay fees to retransmit broadcast TV. To avoid those fees, Aereo set up a very different system, carefully constructed to comply with the law.

But the majority decision in the Aereo case, written by Justice Stephen Breyer, kept returning to the fact that Aereo’s setup “looks just like” what cable companies used to do, so since Congress changed the law to outlaw the cable companies’ rebroadcasts, Congress must have meant that Aereo should be illegal as well. The majority seemed to think that since to end users and to networks it appears identical to the old cable systems (in other words, never mind what’s happening in that “black box”), therefore it is the same. As for the very careful steps that Aereo took to comply with the law? The majority just hand-waved that away.

Given Aereo’s overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here. . . Indeed, as we explained in Fortnightly [v. United Artists Television], such a subscriber ‘could choose any of the . . . programs he wished to view by simply turning the knob on his own television set.’ … The same is true of an Aereo subscriber. Of course, in Fortnightly the television signals, in a sense, lurked behind the screen, ready to emerge when the subscriber turned the knob. Here the signals pursue their ordinary course of travel through the universe until today’s ‘turn of the knob’—a click on a website—activates machinery that intercepts and reroutes them to Aereo’s subscribers over the Internet. But this difference means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into ‘a copy shop that provides its patrons with a library card.’

Following the ruling, Aereo suspended service to its customers, but made it clear that it wasn’t done fighting. Fast forward to today. Aereo said, in effect, Okay, Fine, If You Say We Look Like A Duck, We’ll Quack Like A Duck.

Aereo has now decided that if the Supreme Court is going to call it a duck for looking like a duck, it’s damn well going to quack like a duck too. It has told the lower court that it intends to pay retransmission fees under Section 111 [of the Copyright Act], more or less claiming directly that the Supreme Court overruled the ivi ruling.

Here’s the Aereo Letter.

This is going to get even more interesting as it plays out. Get your popcorn ready, the show isn’t over just yet!