Aereo: Pulling the wrong question from the quiver

[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]