Aereo's TV Internet Broadcasts Are a Simple Case of Piracy

[Commentary] Aereo is a two-year-old company that picks up television signals and sends them to the Internet-connected devices of Aereo subscribers, all without permission from or payment to the broadcasters who provide the programming. In copyright parlance, such use of broadcast signals is called unlicensed public performance. In plain English, it's piracy.

In reality, broadcasters still provide a free service to consumers, and they are the only television distributors that do. Aereo profits from selling copyrighted content the company does not own. The outcome of this week’s Supreme Court case could determine the future of the television industry. High-quality television can no longer be supported exclusively by advertising, as broadcasters now must compete with highly profitable pay networks. As revenues decline, broadcasters cannot afford to subsidize competing platforms like cable, satellite and Aereo, while still providing free high-quality programming to those unwilling or unable to pay. How would a ruling for Aereo damage the television market? It's hard to know exactly. But the NFL and Major League Baseball warn in an amicus brief that a ruling in favor of Aereo could steer sports and other popular programming away from broadcasting. The Supreme Court's job is not to decide what the television business will look like in five years. The question before the court is whether a company "publicly performs" a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers. That's a straightforward question with only one common-sense answer.

[Hane is a partner in the Pillsbury law firm's Washington (DC) office]