Why Do So Many People Describe Aereo 'Complying' With Copyright Law As The Company 'Circumventing' Copyright Law?

from the the-law-is-the-problem dept

All I'm trying to get at, and I'm not saying it's outcome determinative or necessarily bad, I'm just saying your technological model is based solely on circumventing legal prohibitions that you don't want to comply with, which is fine. I mean, that's -- you know, lawyers do that.

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We mentioned this briefly in our writeup of the oral arguments at the Supreme Court in the Aereo case, but I wanted to focus in on one particularly annoying issue that has come up repeatedly throughout this company's history: the idea that itswith the law is actually the companythe law. A perfect example of this is an incredibly ill-informed opinion piece for New York Magazine's Kevin Roose that declares, based on a near total misunderstanding of the case, that the Supreme Court should shut down Aereo because its 10,000 antennas are a cheap "copyright-avoidance gimmick."But that's simply incorrect. It's actually 100% the opposite. We'll fully admit, as that article does, that the setup of Aereo is simply insane from a technology standpoint. There is no good reason at all to design the technology this way. But the reason they're doing this is not tobut to. If you think that this is insane (and you're right) the answer is not to whine about what Aereo is doing, but to. Don't blame Aereo for following exactly what the law says, and then say it's a "gimmick." Blame the law for forcing Aereo down this path.Of course, it's one thing for an uninformed magazine columnist to make this argument... but quite another for Supreme Court justices to do so themselves. And tragically, in the oral arguments, a few of them appeared to be coming close to making that kind of argument (though not so ridiculously as the column above). The worst offender was Chief Justice Roberts, who asked:Note the twisting here.with the law is now "circumventing legal prohibitions." Justices Ginsburg and Scalia both also asked about whether or not the technology decisions had any technological purpose, or if they were solely about the law (though, at least both questioned if the choices were about "complying" with the law). But the implication that is being raised (and has been explicitly raised by others) is that in setting up this "a Rube Goldberg–like contrivance" (as 2nd Circuit judge Denny Chin called Aereo in his dissent to the company's victory in that court) it means that they're somehowAnd that's adangerous assumption, even by implication.If that argument is allowed to fly, then it's not a stretch to see how copyright holders might twistof versions ofwith the law, intosimply by arguing that the form of compliance is somehow "too clever." That would lead to all sorts of dangerous implications -- in which those who aremay suddenly be deemed infringing. Under such a standard, the more carefully you aim to comply with the law, the greater chance you can be accused of "contorting" yourself in a manner that allows copyright holders to argue that your compliance is somehow "less than sincere" as appears to be the main suggestion here.It's troubling that at least a few of the Supreme Court Justices appear to even be considering such a possibility.Yes, Aereo's setup is technologically bizarre. But that's because it's doing everything towith copyright law. If you have a problem with it, it's not because the company is breaking the law, it's because. It would be a cruel twist of fate for Aereo to lose its case because Supreme Court Justices believed that it had broken the law, because the inevitable results of the broken law itself create a situation where complying with the law looks so bizarre that it appears to be infringement!

Filed Under: antonin scalia, compliance, copyright, gimmicks, john roberts, kevin roose, ruth bader ginsburg

Companies: aereo