Aereo’s attitude toward the intellectual property of broadcasters is the same as that of a 15-year-old who believes that he has a god-given right to anything he is smart enough to download or stream off the Internet — be it the complete works of the Beatles or Glee or Marvel’s The Avengers in HD. As an investor and the public face of Aereo, Barry Diller is endorsing that kind of juvenile thinking. I’m surprised he would be associated with such a venture.
I’ve long admired Barry Diller, not just for his much celebrated success in launching the Fox network in 1986, but for his barely remembered failure in launching USA Broadcasting in the late 1990s.
USA was a badly needed effort to reinvent local TV broadcasting. With a mix of original local programming, news and pro sports, Diller’s string of major market TV stations would engage their communities as no independent stations had done before. Diller would show the way.
WAMI in Miami was the flagship. With such a catchy rhyme, how could it miss?
But it did. All that live production was expensive and it didn’t come close to capturing the viewership needed to pay for it all. Diller abruptly pulled the plug in 2001, selling all of the stations to Univision.
Diller deserves kudos for the venture. At least he tried. But now I’m thinking the USA experience left Diller with bitter feelings toward broadcasting.
How else to explain his peculiar involvement in Aereo, an outfit that expects to retransmit TV broadcast signals on the Internet to paying subscribers without the permission of the broadcasters and without compensating them in any way?
Aereo’s attitude toward the intellectual property of broadcasters is the same as that of a 15-year-old who believes that he has a god-given right to anything he is smart enough to download or stream off the Internet — be it the complete works of the Beatles or Glee or Marvel’s The Avengers in HD.
As an investor and the public face of Aereo, Diller is endorsing that kind of juvenile thinking, which I cautioned my own children against when they first discovered the “free” movies and music on the Web.
But Diller is a grownup — 70 years old, in fact — and should know better. His whole career is built on enforcing and respecting program copyrights. He now runs businesses at IAC whose success relies on them. Not to respect those of broadcasters now is hypocritical.
In an interview with The New York Observer last week, Diller downplayed the impact Aereo would have on the broadcasters’ retransmission consent revenue: “It may affect the absolute amount, but the amount is going to be large regardless of Aereo.”
Translation: It may be stealing, but it’s not costing the broadcasters a lot so what’s the big deal?
The broadcast networks have asked a federal court to enjoin Aereo on copyright grounds. The tactic has worked before, most recently with ivi.tv and FilmOn.com.
But Aereo thinks it has a chance because it has come up with a Rube Goldberg contraption designed specifically to exploit a loophole in the copyright law.
Rather than just picking up the broadcast signals and streaming them on the Web as ivi.com and FilmOn were doing, Aereo has rigged up what it contends is an individualized TV reception service.
It envision building vast arrays of tiny broadcast antennas so that it can assign individual ones to each subscriber and feed him or her broadcast signals via the Internet to be watched on any kind of computer — desktop, tablet, smartphone.
The service is enhanced by a user interface that lets subscribers search for shows, and a virtual DVR that allows them to record shows for playback at their convenience.
The whole setup is intended to take advantage of a case in which Cablevision Systems was able to convince the federal courts that its remote DVR service did not infringe upon the copyright of programmers.
Like Aereo is now doing, Cablevision characterized its service as merely providing technology for each subscriber’s use. That the technology is located at the cable headend rather than in the subscriber’s living room should make no difference.
In other words, Cablevision successfully argued, when a subscriber watched a show on his own remote DVR, it wasn’t a performance triggering conventional copyright liability.
Oral arguments on the networks’ request for an injunction against Aereo were heard Wednesday and Thursday. To get the injunction, the networks have to show that they have a likelihood of success on the merits of the case and that they will suffer irreparable harm without the injunction. A ruling is expected in a month or so.
Using the same language as Aereo’s lawyers, Diller has repeatedly defended the venture and has lent an air of legitmacy to Aereo that it could not otherwise earn. In testimony before a Senate committee in April, Diller told Sen. Jim DeMint (R-S.C.) that it was not a network, just a technology rental company.
“We do not resell anything,” Diller told DeMint. “We charge consumers for the infrastructure that we put together, for the little antenna and for our DVR cloud service. We don’t charge for programming that is broadcast for free. The local broadcasters send a signal out and we provide an antenna to receive it and put it over the Internet and allow people to record it.”
I received a note from Lee Spieckerman, president of SpieckermanMedia of Dallas, that concisely and emphatically answers Diller: “Aereo has fabricated a fig leaf that is ridiculous on its face. So the scheme, regardless of how ‘individualized,’ is in no way analogous to an individual with his/her own antenna, picking up a TV station. It is, in almost every respect, equivalent to a cable system or DBS service capturing a local TV signal and sending it to a paying consumer’s television.”
For me, the giveaway — the thing that should tell everybody, including, I hope, the presiding judge in the networks’ suit, that Aereo is not on the up and up — is that its technology was not conceived to provide a cheaper or better service or product. It was ginned up simply to allow Aereo to slip through a crack in the copyright law. Such “innovation” should not be rewarded.
I am surprised that Diller would be associated with such a venture.