Hard to write these words after days of sobbing. Pity wretched Chet Kanojia and his martyred Aereo, a hapless victim of an out-of-touch Supreme Court that seems to think property rights and “honesty” are more important than digital progress. Here the justices were, face to face with a heroic innovator, a modern-day Robin Hood, and what do they do? Beat him down, that’s what.
Writing for the majority, Chief Justice John Roberts opined: “Dude, we don’t mind if you steal from the rich. But we’re sure as hell not gonna let you sell it to the poor.”
You probably know the situation. Big Broadcast and Big Cable, sheriffs of Nottingham if ever there were any, got all up on their high horse just because Aereo was capturing local broadcast signals and streaming them online to subscribers. Now obviously, that’s exactly what your cable company does -- but cable pays broadcasters cash money per subscriber in retransmission fees, which it then passes on to you, the consumer, plus a healthy gouge-up. In the 11 cities where Aereo had set up shop, selling its service to cord-cutters for about $8 a month, broadcasters were getting stiffed and cable was being undersold.
So they all screamed “copyright theft!”
Whereupon Aereo furnished a perfectly simple explanation: they weren’t retransmitting anything. See, they didn’t use a big honking antenna to scoop up all the broadcast signals and pass them along to subscribers. No! Not that at all. They deployed thousands of micro-antennas and organized a data network that at any given moment assigned one tiny antenna per subscriber. The broadcast signals would be fed to those subscribers, yes -- but that was none of Aereo’s business.
They were just an antenna-rental outfit, duh.
Here was an exchange I had with Kanojia on my radio show.
Me: Now, far be it from me to take the side of the cable companies who've been gouging consumers for decades. But it still seems to me you're exploiting a legal loophole to distribute stuff that just doesn't belong to you. Why am I, suddenly for the first time in my life, sympathizing with big cable?
Kanoja: The question I would ask is do you think Radio Shack should be paying retransmission fees because they sell antennas? Do you think Sony, that has made billions of dollars selling televisions with tuners, should be paying big retransmission fees? Aereo is a technology company that just does the same things that Radio Shack and Sony do, slightly differently.
He believes that because the broadcast signal travels over public airwaves, we have the right as individual citizens to harvest them, exactly as we have the right as taxpayers to stop trucks traveling over public highways and hijack their contents.
Up until this week, federal courts accepted that very rationale, but SCOTUS came to notice a tired old analog concept of “right and wrong.” Robin Hoods don’t get to be Robin Hoods, however, by simply bowing to The Man. Even as he shut down his service, Kanojia was defiant: “We are disappointed in the outcome, but our work is not done. We will continue to fight for our consumers and fight to create innovative technologies that have a meaningful and positive impact on our world.”
Kanojia’s chief investor, Barry Diller, is less resolute. He has pulled the plug and will most likely return to traditional analog way of squandering money by investing in Tina Brown’s latest project, Vaudeville magazine.
The question is: whither the technology? Clearly the business models and techo-infrastructure of both broadcast and cable are obsolete. Clearly change is in the airwaves. The Supreme Court is simply too calcified to understand.
Strange. I had lately been kind of optimistic about the high court. Five visionary justices had the wisdom to understand that money equals speech, as articulated in Citizen’s United. In this case, how did they fail to grasp technology’s evolving Assange Ethic:
“If it is possible, it must be good.”