At issue is that seemingly quaint technology called an “antenna.” Aereo says it is simply providing consumers with a virtual “digital” antenna that connects with the Internet. The brief says that’s not quite right, because Aereo’s antenna is not just a bunch of metal on a rooftop: "Unlike a purveyor of home antennas, or the lessor of hilltop space on which individual consumers may erect their own antennas, respondent does not simply provide access to equipment or other property that facilitates customers' reception of broadcast signals. Rather, respondent operates an integrated system -- i.e., a 'device or process' [emphasis added]-- whose functioning depends on its customers' shared use of common facilities."
A “home antenna” receives signals directly from a TV station’s tower. Aereo’s antennas? They might be “individual” in theory, but they’re actually a “process,” according to the brief. That process also presumably includes the monthly payments Aereo customers need to make. (Perhaps Aereo should switch to a one-time purchase of its “antenna” akin to buying a home antenna at Best Buy.)
While the brief plainly says that Aereo is “retransmitting broadcast content to the public,” it also backs Aereo’s efforts to run a legitimate business. But Aereo would need to pay the proper freight -- fees to content owners -- for acquiring copyrighted content.
The digital “antenna” concept is an easily digestible marketing theme that everyone can understand. But any operation that runs via Internet technology is always a bit more complicated.
Perhaps this question should be asked: Can the average U.S. TV household connect to content by setting up its own virtual “digital” antenna -- with no company acting as middleman?
In April, the Supreme Court will hold a hearing on the Aereo case, and by June, broadcasters will know where they stand.