Gus Hurwitz

[Commentary] Since 10:17 a.m. on June 25, 2014, hundreds, if not thousands, of articles and blog posts have been written explaining, dissecting, and analyzing the Supreme Court’s decision in ABC v. Aereo.

The basic point I want to make is that Aereo is a broadcast policy and communications law opinion; it is not a copyright opinion. I am generally not a proponent of outcome-oriented decision-making. But in this case, Aereo’s technology and business model so clearly sought to bypass (or, at best, simply ignored) so many important policy issues that what amounts to a summary dismissal of the company’s theory of operation seems entirely warranted.

[Hurwitz is an assistant professor at the University of Nebraska College of Law, where he teaches telecommunications law, cyber law, law and economics, and other regulation-related subjects]

[Commentary] Aereo goes to the Supreme Court in what is one of the most important broadcasting and copyright cases in recent history.

Unfortunately the question that the Court is considering -- whether Aereo violates broadcasters’ public performance right under copyright law -- is the wrong question to ask. No matter the outcome of the case, it will be the wrong policy outcome. Either Aereo wins, which is the right outcome under copyright law but the wrong one for broadcast policy, or Aereo loses, which is the right outcome for broadcast policy but the wrong one for copyright law.

Unfortunately, these copyright issues miss the more challenging -- and important -- question in this case. The central issue in the Aereo case is not about copyright law -- it’s about how much, and whether, we continue to value over-the-air broadcast television as we transition to primarily wireline-based distribution of video content. On this front, Aereo deserves to lose. Aereo’s business model is problematic not because it pushes the boundaries of copyright law, but because it undermines the economics of the over-the-air model. In other words, Aereo’s business model threatens the two sources of revenue that underlie the broadcast business: advertising and retransmission fees.

[Hurwitz is an assistant professor at the University of Nebraska College of Law]

[Commentary] Following news of the proposed Comcast/Time Warner Cable merger and the Comcast/Netflix interconnection agreement, the tone of telecom and tech policy discussions has fallen precipitously.

Most commentary about these deals has been immediate and reflexively hostile -- based in emotion and fear rather than in facts. At its core, the response to these deals reflects popular anti-market, pro-regulatory, sentiment.

Perhaps surprisingly, I find these attitudes quite sympathetic -- the pro-regulatory view is intuitively appealing and at some level a reasonable one to hold. While I disagree with it, it is important to understand why this view is so durable. Market-oriented advocates generally view the market as respecting and promoting individual autonomy and dignity -- and they fear that regulation robs individuals of this dignity, denying them their basic freedoms of association and conscience.

Advocates for stronger regulation generally have the opposite perspective, distrusting markets and fearing that they treat individuals as commodities, robbing them of same dignity that market-oriented thinkers seek to protect. The pro-regulatory view sees regulation as a way preserve individuals’ dignity against a hostile market.

Which view is right? The answer, of course, is both -- for reasons that I believe are particularly important for free-market advocates to understand. If the free-market view is to be internally consistent, its advocates need not only to focus on why they are right, but also to respect why its detractors are not wrong. The winning appeal to the public is that of dignity, of the market’s power to protect and promote the interests of the individual -- of all individuals -- and of the counter-intuitive dangers that regulation poses to it.

[Hurwitz is an assistant professor at the University of Nebraska College of Law]