Aereo, a service that lets users record broadcast TV shows over the internet and stream the recording to their mobile devices, is fighting for its life before the Supreme Court this week. (My colleague J.J. Colao is there following the case.)
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There are good arguments to be made that Aereo’s business model, which involves arrays of thousands of tiny antennas, is a cynical and legalistic attempt to evade copyright protection. Then there are the bad arguments, one of which comes from New York magazine’s Kevin Roose.
Roose calls the Barry Diller-backed company “a clever bit of regulatory arbitrage masquerading as a start-up.” Aereo’s lawyers would quibble with that, but I won’t. But then Roose offers this analogy to prove his point:
I work at a magazine whose content is copyrighted. Currently, it’s illegal to scan an entire issue of New York, post it on your website as a PDF, and charge visitors for access to it. But it’s legal to browse a copy of New York at your local newsstand, read every article inside, and put it back without making a purchase. It’s probably even legal for your friend to go to the newsstand, pick up the latest issue of New York, read every article to you over the phone, and put it back on the shelf without buying it. (Though I don’t recommend this — it would be painfully slow, and newsstand operators wouldn’t like it.)
Imagine if you came up with an idea for a start-up — let’s call it Readeo — that would exploit this loophole. For $8 a month, Readeo would give you the right to rent a small, magazine-reading robot. Every time you wanted to read a New York article, you’d tap a button on your iPad, and your personal Readeo robot would be dispatched to the nearest newsstand, where it would pick up a copy of the magazine and read the article to you over the phone using OCR and speech software. Now imagine that, somehow, this process could be sped up to the point where it was nearly instantaneous — desire article, tap app, dispatch robot, read article — and where the robots could replicate pictures as well as words. You’d be getting a perfect, on-demand copy of New York’s editorial content anytime you wanted it, without paying a cent to the magazine.
And our lawyers would (I imagine) sue the bejeezus out of you.
A post about digital copyright law probably isn’t the best place for me to use such an extensive blockquote, but I wanted to convey the full weirdness of Roose’s analogy. It is a very bad one. Readeo is nothing like Aereo for the simple reason that the magazines at his hypothetical local newsstand are for sale. Yes, it is legal to stand at a newsstand and read magazines to your friend over the phone. It’s also legal for the newsstand owner to tell you — or a robot — to move along and get your damn hands/servo-grippers off his merchandise. That’s why calling it a “loophole” is silly. It’s like saying it’s a loophole that you can stand in the TV section of Best Buy all day and watch ESPN. Well, sure you can.
Aereo’s not trying to resell programming that’s already for sale. It’s only providing easier and more convenient access to programming the networks themselves are giving away for free. For Roose’s analogy to work, Readeo’s robots would have to restrict themselves to reading only free magazines and newspapers, like the Village Voice.
Better yet — because who wants to sit and listen to someone read an entire magazine? — let’s say Readeo worked like this: A robot goes to the newsstand, grabs a copy of each free newspaper you request, scans the pages in, and sends a link to the private online locker where you can view them. If another user wants to read the same newspaper, the robot has to take two copies and scan them in separately.
How would the free newspapers involved react to this scheme? They would be thrilled with it. As long as the ads got scanned in along with the articles, it wouldn’t hurt them in the least. In fact, it would help them, because print readership is so much more lucrative than digital readership. (In my hypothetical reality, as in the real one, most newspapers have free websites that don’t bring in much ad revenue.)
And this is where my own analogy breaks down, because over-the-air TV isn’t really free — not anymore. Viewers who watch ABC, CBS, Fox and NBC with a (normal-sized) antenna are getting them for free, but the majority who watch them through a cable or satellite package are paying for the privilege, indirectly, via the billions of dollars in retransmission fees pay-TV providers render unto the networks.
It’s kind of convoluted that viewers who choose to pay for one variety of TV service therefore also have to pay for another variety of service that would be free if the signals entered their homes via an antenna rather than a cable or a dish. It’s so convoluted that it resists simplification by analogy.