Monday, March 05, 2012

Aereo -- What's the Real Difference From Rabbit Ears of Yore?

Digital media execs all over are talking about Barry Diller's new company and service Aereo, which just recently launched. Aereo enables customers to "catch" so-called "free" (i.e., ad-driven) broadcast TV (i.e., the major networks) and stream it online via an entirely new approach -- a network of tiny antennas. Apparently, each customer has its own tiny antenna. As I understand it, these antennas are analogous to the rabbit ears of days gone by.

But, these are new rabbit ears, mind you -- and, Aereo enables "broadcast" to internet-connected devices (rather than old-fashioned dumb TVs). Still, Aereo does no altering of the broadcast feeds -- that means Aereo customers see the same ads that customers of dumb TVs with rabbit ears see. That means that TV content providers -- and the ads that support them -- have another distribution outlet. And, everyone is happy and that is good for those players, right?

Wrong. Most significant media companies have now sued Aereo to stop this -- for the reasons stated in TechCrunch ("Aereo Actually Has a Shot at Beating the Broadcast Networks") and Techdirt ("TV Networks Sue to Gang Up on Aereo -- Do Copyright Rules Change Based on the Length of a Cable?"). Each of those posts provide legal analysis of the issues, which I won't separately touch in this post. Rather, let me touch on real-world issues -- and logic.

First, to be clear, I absolutely feel that content creators and owners must get paid. Content is king -- and there should be no free riders.

Second, to be further clear, I absolutely appreciate and understand the legal issues involved. After all, I was an IP/entertainment lawyer for years many moons ago -- and, in fact, I worked for major media companies such as Univeral Studios and New Line Cinema. I also served as a federal law clerk way back when for Chief Judge Harold M. Fond of the U.S. District Court of Hawaii -- so I know how legal rulings are made. Although my judge officially issued the rulings, I wrote them. I established the rationale. In other words, I know -- first-hand -- how law is made.

And, that "making" is not black and white. Never is. Anyone who has been an insider in the legal business knows full well that legal opinions are frequently used to justify "gut" reactions about what the "right" outcome should be. And, because judges and all others in the legal system are all human, naturally they are influenced by forces around them -- including predispositions -- and, importantly, a lack of expertise in the areas on which they must make their ruling ... including technology, the internet, and overall new digital media issues.

So, while many lay-people feel that legal rulings are written by experts who carefully consider all issues involved -- and then use clear precedent to reach their rulings -- that simply is not the case many times (even despite good intentions). Any conclusion can be supported by one case or another -- there are millions of cases and rulings out there!

Back to Aereo and its current battle royale with the content guys. Let's step back for a second. What's the real practical difference here from what has been done for years via rabbit ears? Not much that I can see. Yes, the context is a bit different, but the overall logic really doesn't change ... or at least shouldn't change.

Yet, lots of powerful forces are involved here. And, remember, no matter who wins or loses, the ultimate arbiter will be able to find a legal underpinning for its decision ... no matter how impractical or illogical it may be ....