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Wednesday, June 25, 2014

Supreme Court Aereo Decision Won't Stop Mobile Television Viewing

The Supreme Court's Aereo decision today was a tough one - pitting the people's right to view television that is already free, versus the networks' right to control and profit from their content. By finding that Aereo violates the Copyright Act, the Supreme Court sided with the networks. But the decision does not mean that the viewing of network content on smartphones, tablets, etc will not be easily available. Indeed, the networks themselves and cable carriers are already making their programs available on digital devices via all kinds of apps. The future of television on mobile devices looks bright, even if independent companies such as Aereo may not be a part of it.

By and large, and indeed with one big exception, the Supreme Court has done well by television viewers over the years.   Especially significant was the Court's 1984 ruling in the "Betamax case" (Sony v. Universal City) against the networks, which held that home recording of television programs by viewers for their personal use did not violate the Copyright Act. This opened the golden age of on-demand television viewing that we're now enjoying.

The exception to the Supreme Court's good rulings about television has been its failure to strike down once and for all the FCC's unconstitutional fining of television stations that broadcast "objectionable" content.   The Court correctly struck down fines for "fleeting expletives" in 2009 (FCC v. Fox), which was an important step in the right direction. But it needs to yank the FCC 100% out of its meddling with television content, and the serious violation that entails of the First Amendment.

As for Aereo, it might have been better off to work out some kind of deal with the networks and cable, perhaps allowing itself to be purchased by one or more of them, as Google and Facebook have done with some of their competitors.  As powerful as the digital revolution is, it has not overturned copyright and the power of the networks, and at least some of that is a good thing.

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