In Aereo case, Supreme Court to weigh public (performance) vs. private

[Commentary] The Supreme Court is scheduled to hear arguments in the most important copyright case of the year, and possibly the most important one since it took up file-sharing piracy in MGM vs. Grokster.

The new case, ABC vs. Aereo, tests the reach of a key monopoly held by copyright owners: the rights to the "public performance" of their works. On the surface, this case is a slam dunk for ABC and the other broadcasters that brought the lawsuit. Aereo sells a subscription TV service that provides consumers access to their city's local broadcast channels via the Internet, enabling its customers to watch live or recorded shows on their tablets, smartphones, laptops or smart TVs. That's a truncated version of cable, and Congress made clear in 1976 that cable companies have to get broadcasters' permission before retransmitting their programs to the public. In recent years, broadcasters have been demanding (and receiving) increasing retransmission fees, creating a major new revenue stream. To the broadcasters and their allies, that's the entire case. o Aereo and its allies, however, the details are important. Because even if the networks, the US Solicitor General and others on ABC's side are right about what the law says, they're wrong about what's actually happening when an Aereo customer watches TV. This case could ultimately affect how flexible business models will be, as well as companies' ability to build online services around consumers' fair use of copyrighted material. If the justices decide how to treat Aereo by ignoring its technology and looking only at the market segment it occupies, that would be troubling news for innovators.