The United States has long recognized broadcast television programming’s importance to the public’s information and entertainment needs. Accordingly, Congress has historically offered strong copyright protections for broadcast television networks. Those strong protections allowed broadcast networks to withstand business threats from innovations like cable television and VCRs. However, Congress’ recent silence on DVRs and cloud computing technology has allowed an entrepreneur to create the networks’ next biggest threat, Aereo. The creators of Aereo and similar businesses designed their services specifically around ambiguities within copyright law that could allow them to transmit networks’ content without paying the otherwise necessary consent fees. These services capture networks’ free over-the-air broadcasts and retransmit a copy of those broadcasts to subscribers from a user-specific cloud. Essentially, Aereo-like services allow viewers to receive and record television without any physical equipment like antennas or DVRs. Broadcast networks have fought Aereo-like services in courts to ensure that these services will not affect their revenue streams. Yet, as other digital services and consumer viewing habits continue to threaten the networks’ business models, broadcast networks’ battles with Aereo, may really be a battle with themselves. This comment explores the legal ambiguities surrounding Aereo’s creation and its usefulness in the television market. It determines that Aereo-like services are a present necessity to the broadcast industry, but also a long-term harm if Congress leaves them completely unregulated. Thus, this comment proposes business and congressional solutions to encourage legal clarity to secure rich broadcast television for the digital world.
Bradley Ryba, Aerevolution: Why We Should, Briefly, Embrace Unlicensed Online Streaming of Retransmitted Broadcast Television Content, 13 J. Marshall Rev. Intell. Prop. L. 577 (2014)