Aereo’s legal strategy straightens up and flies right

[Commentary] Recently, news broke that Aereo has reframed its legal strategy to embrace just this argument, now arguing that it is a cable system and that it can avail itself of the Section 111 compulsory license to gain access to broadcast television content. The key question: Is Aereo a cable system?

At the end of the day, we should be thankful for Aereo’s willingness to put these issues front and center. Unlike their previous legal theory, where they tried to drive a freight train of copyright violations through the eye of the Cablevision needle, they are now forcing our attention to the key legal and policy issues. There are good arguments on both sides of the Aereo-as-cable question.

In either event, judicial resolution of the issue would increase certainty within the industry in a way that the Supreme Court’s Aereo decision did not. Even more important, a decision -- whichever way it goes -- would helpfully frame the issue for ultimate resolution by Congress.

If there’s one thing that the Aereo saga makes clear, it’s that current video regulations are a poor fit for the Internet age; Aereo’s continuing efforts can only help get the much-needed involvement of Congress in updating these out-of-date regulations.

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