Court says pay to play in television

The mantra among Internet cognoscenti is “Information wants to be free.” What’s strange is that many who argue that often are looking to profit off that information even if it belongs to or was produced by somebody else.

And in the free info debate, time and time again, the Supreme Court has come down on the side of intellectual property rights over technology. The latest decision comes in the case of Aereo, the $100 million digital start-up that has much of its operations in the Innovation District in South Boston.

Aereo offers – for the very short-term, at least – a service for $8 to $12 a month for customers to stream or download and record the broadcast stations of the biggest networks. Viewers use dime-sized antennae provided by the company to capture the airwaves and bring the programming home to their computers, tablets, smartphones, or any Internet-connected device. Aereo founder Chet Kanojia, a Northeastern graduate, argued the business is providing customers with the same content they could otherwise get with their own antennae on television.

Well, not so much, said the Court in a 6-3 decision written by Justice Stephen Breyer . Breyer said Congress changed the copyright laws in the mid-1970s to deal with the nascent cable industry to make sure those who spent the money to produce content were paid for their efforts and property. Aereo, he writes, may have some whiz-bang technology to offer but, in the end, it’s the same as a cable box or satellite dish .

“Insofar as there are differences, those differences concern not the nature of the service that Aereo provides so much as the technological manner in which it provides the service,” Breyer wrote.

Unsurprisingly, the networks hailed the decision while the tech industry screamed that it would put a clamp on development and innovation. Breyer took pains to note the ruling was limited, writing that the decision won’t “discourage the emergence or use of different kinds of technologies.” Try selling that one to the skeptical masses.

“An even worse dystopian possibility is that this opinion will chill innovators who want to rely on legislative text to develop innovative technological workarounds,” Internet law attorney Eric Goldman writes in Forbes. “But so many of our most cherished technological tools made exactly that kind of end-run on incumbents. If this opinion discourages that kind of innovation, we as a society will be poorer.”

Some argue this decision could provide leverage to others in a wide-variety of technology, entertainment, media, and information industries to wield against start-ups looking to infringe on their investments without paying. Think cloud computing. Some of the storage services, such as Dropbox and Apple’s iCloud, as well as DVR manufacturers, had expressed concerns an adverse ruling for Aereo could have ripple effects on them.

It’s a decision somewhat akin to the ruling against Napster, the fledgling peer-to-peer music sharing service that was forced to change its business model after a successful copyright violation suit by the music industry in 2000. Napster changed to a pay model that has had minor success but was never the behemoth the founders and users had hoped.

But while many bemoan the tarp they think is being thrown over innovation, overlooked is the effect it has on those who produce the content and see their livelihood handed out like free drink samples outside South Station.

“On the way to making millions for its owners and investors, Napster has yet to give anything to artists other than the chance to spread their music, for free, and whether they like it or not,” jazz legend Herbie Hancock wrote in the preface for the 2008 book Sonic Boom:Napster, MP3, and the New Pioneers of Music. “Its supporters hide behind claims labels misuse artists or consumers, as if that entitles them to take everything they want for free…Although the appeal to consumers is obvious – who wouldn’t want free music? – the law and common morality forbids stealing.”



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