The Aereo Ruling Is A Disaster For Tech, Because The 'Looks Like Cable' Test Provides No Guidance
from the a-mess,-a-mess,-a-big-fat-mess dept
Following the Aereo ruling in the Supreme Court this week, lots of folks are sifting through the decision and opining on what it all means. To give a brief summary, the general consensus is that the Supreme Court’s “looks like cable” test is so devoid of actual legal standards and/or reasoning that perhaps the “best” result might be the fact that it gives no real guidance to anyone. The Court’s decision rests almost entirely on the fact that Aereo “looked like” something else, totally ignoring the very important technical differences. The most ridiculous part of the ruling was where the majority totally admits that it’s not going to even bother to look inside the black box to see if Aereo actually infringes, but rather will just say that it’s infringement because of the similarity to cable:
Viewed in terms of Congress’ regulatory objectives, why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. They do not render Aereo’s commercial objective any different from that of cable companies. Nor do they significantly alter the viewing experience of Aereo’s subscribers.
That rationale should be scary to anyone who believes in the rule of law. The Supreme Court is flat out saying “we have no interest in opening up the black box to see if it’s infringing, instead, we’re going to look at the inputs and outputs and assume that it must be infringing, because those inputs and outputs sorta kinda match this other system that was infringing.” But that deliberately blocks off what the actual dispute was about: whether or not what’s happening in the black box infringes.
And because of that, lots of other internet services are… suddenly left swimming in the dark. Even if they (as Aereo did) follow the letter of the law to avoid infringing, if the Supreme Court (or another court) suddenly decide that they look like an infringing system because the court puts a black box around the specifics, they can be found infringing too.
Law professor Mark McKenna has a really good analysis of why this “looks like something that infringes” test is such a mess:
It would be one thing if the consequence of this approach were simply to block Aereo from offering its services. That would be a loss to consumers who don’t want to pay $150 a month for cable subscriptions, but at least the damage might be contained. Unfortunately, the problem is bigger than that, for in glossing over technological details, the opinion potentially implicates a wide range of other services. What about Dropbox and other cloud computing services, for example, all of which use their own equipment to retransmit what they receive to their customers, often transmitting many user-specific copies of the same works? How do those avoid liability? Not to worry, says the court, those technologies might be different. Why? Because cable system.
The most obvious way to insulate many of the cloud computing technologies would be to hold, as the dissent suggested, that a party does not infringe when it “does nothing more than operate an automated, user-controlled system.” But that is apparently not the rule, because it would have insulated Aereo from liability, too. Thus, while the court assures us that user control over a system might, in some cases, make a difference, it gives us no guidance as to when that might be true, except to say that it isn’t true here.
And… what that means is there will now be a ton of litigation, as old gatekeepers attack new innovations, testing out every angle of this bizarre “looks like an infringing system” test. Law professor James Grimmelmann, interviewed by Tim Lee at Vox, similarly notes what a mess this will become:
“The court is sending a very clear signal that you can’t design a system to be the functional equivalent of cable,” says James Grimmelmann, a legal scholar at the University of Maryland. “The court also emphasizes very strongly that cloud services are different. But when asked how, it says, ‘They’re just different, trust us.'”
Sure, we now know that if it “looks like a cable system” then it’s not legal. But now get ready for a whole host of “looks like x” lawsuits. Lots of different online services might “look like Grokster.” After all, that’s what Viacom claimed about YouTube. Would YouTube have survived the Viacom lawsuit with this test? Unclear. As Sarah Jeong notes in her write up about the ruling, the really scary part is that we’ll “never know the technologies that could have existed, the services that could have been,” because many won’t even bother trying.