Aereo could have saved the airwaves from the broadcasters’ ransom

[Commentary] The Aereo case came down, at its heart, to whether the US’s top court would go with the spirit of the law, or its letter.

The strict constructionists on the court, led by Justice Antonin Scalia, dissented: Aereo had found a cunning loophole in the law. The majority, however, insisted that the law in question -- the Copyright Act of 1976 -- be “read in light of its purpose”. The Act created a whole new revenue stream for broadcast television networks. No longer did they need to survive on ad revenue alone; now, they could also charge the cable networks for access to their channels. Aereo was a threat to that model. From the consumer’s point of view, it was a company that looked very much as though it was rebroadcasting a huge range of free-to-air TV stations – only instead of the stations arriving through a cable pipe, they arrived on your computer, or your phone, over the internet.

Once again, the broadcasters wanted the ability to charge for such rebroadcasting activity. But the world of 2014 is different to the world of 1976 in two ways:

1. When the people who own the broadcast channels make most of their money from cable TV, they are not going to push the free-to-air option. In fact, the cable companies spend a lot of time and effort preventing broadcast networks from making their content available for free.
2. Spectrum used by the broadcast networks has become enormously valuable. In a free market, there would be almost no broadcast TV at all: it is an incredible waste of spectrum, which can be put to much more effective use, for example by mobile phone networks.

[Salmon is a senior editor at Fusion]