SCOTUS Grants Cert on Video Streaming of Broadcast TV by Aereo

Websites like Hulu, Netflix, and more recently Amazon have made video streaming the new popular way to watch your favorite shows. It’s easy to see just how popular this medium is one looks at the numbers. Hulu announced in 2013 that it had over 4 million paid subscribers and had streamed over a billion videos. Netflix finished 2013 with over 30 million paid subscribers and had over a billion dollars of revenue in the fourth quarter. This success was no doubt due in part to the popular original shows that Netflix has recently offered, including House of Cards and Orange is the New Black. Finally, Amazon has gotten into the streaming game, and boasts an estimated 10 million subscribers to its Prime program.

Though these Titans of the video streaming world are currently free from legal troubles, other video streamers are not so clearly legal. On the more dangerous side are sites like Project Free TV, which is an aggregation site whose mission is to find and post links to streaming videos of everyone’s favorite television programs. And then there are companies like Aereo.

For about $8 per month, Aereo allows subscribers to watch broadcast television streamed to desktops, smartphones, or set-top boxes. They work through special dime-sized antennas that are leased to customers from Aereo. This allows customers to watch their favorite networks: NBC, CBS, ABC, and Fox. The catch for those broadcasters is they are not paid for this use of their programming. Naturally, this has led to a lawsuit against Aereo, which has recently been appealed to the Supreme Court of the United States.

The four major broadcasters and those that join them argue that Aereo refusing to pay violates their copyrights, resulting in a loss of revenue to them of over $4 billion this year. Aereo’s founder and CEO, Chet Kanokia responded in a statement, “we have every confidence that the court will validate and preserve a consumer’s right to access local over-the-air television with an individual antenna, make a personal recording with a DVR, and watch that recording on a device of their choice.”

Despite flurry of lawsuits, Aereo is still currently online, based on the court decisions so far. However, the Supreme Court, being the supreme law of the land, will ultimately determine Aereo’s fate. In early January, U.S. District Judge Alison Nathan had an opportunity to rule on summary judgment in a New York case against Aereo, but decided against it, given the news that the Supreme Court was going to take up these legal issues. She noted that the Supreme Court’s certiorari suggests that “the law governing the issues raised by these motions may be explained or clarified in ways that may materially affect the outcome of this matter.”

The broadcasters, Aereo, and its clients will all wait with bated breath for the ruling of the Supreme Court, which is expected by the end of June. Perhaps the Court, in its wisdom, will find a proper compromise to this difficult question of when copyright laws come up against new technological advances.

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* John Hodnette is a second year law student at Wake Forest University School of Law. He holds a Bachelor of Arts in English, with a minor in Philosophy, from Auburn University. Upon graduation, he intends to practice in the Chicago area.