Why the Supreme Court just set TV innovation back a decade

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It’s more than 24 hours later, and I’m still furious.

When news of Aereo’s demise broke yesterday morning, I did my best to calmly explain why six people used the law to kill the most innovative TV service in a generation. But now I might as well say how I really feel.

The Supreme Court, which ruled 6-3 that Aereo’s streaming service infringed on broadcasters’ copyright, was not just wrong. It was terrible, stupid and misguided.

Where to begin? First, there’s the slapdash legal reasoning that led the court to declare that Aereo engaged in a “public performance” when it rented antennas and DVRs that let consumers watch and record over-the-air TV. By the letter of the law, Aereo clearly did no such thing — but the good judges swept this aside with what the dissent rightly called “an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come.”

The court’s improvisation turned on the 1976 Copyright Act that, under a provision called the “transmit clause,” gave broadcasters new rights over-the-air signals sent to the public. The court, however, brushed aside the hard question of how exactly Aereo’s discrete one-to-one streams were “public,” and instead said it didn’t matter since it was a “behind-the-scenes” issue.

This legal mess, on its own, is almost tolerable. After all, courts pull this sort of slight-of-hand all the time when they try to stuff the square pegs of policy into the round holes of law. Instead, it’s the court’s policy choice that’s so plainly stupid and bad.

In crippling Aereo, you see, the six judges made a choice to entrench the current, badly broken model of TV. That model has let the TV business largely defy the logic of digital distribution, and instead impose a form of cartel pricing on consumers — requiring people to buy a slew of channels they don’t want in order to watch the handful of ones they do.

Have any doubts about the effect of the court’s decision? Just look at how the share price of old-line TV companies popped on Wednesday on the news that the Supreme Court had chosen to bless and protect the status quo.

But while CBS and ABC investors may be throwing around high fives at the sop from the Supremes, the average consumer just took a bath. Not only did the court just stick it to them by protecting the TV industry’s bundle rip-offs, consumers also lose access to a marvelous technology.

Aereo, you see, was different. It gave urban dwellers like me a cheap way to see over-the-air shows (which the broadcasters send out for free in the first place, don’t forget) on their computers and phones.

The service, to be sure, was from perfect. The show streams could be choppy, and in the case of sports, the short time delay could be frustrating — I would sometimes learn about a goal on social media right before seeing it on Aereo. And it lacked the lazy, channel-clicking pleasure of TV.

But Aereo did point out what could be: a commonsense way to watch TV over the internet at a reasonable price. Now, we’re stuck instead with the TV industry’s over-priced bundles and, in the case of mobile, a confusing and convoluted “TV everywhere” system that seeks to replicate an out-of-date form of linear TV watching that no one wants in the first place.

The defenders of the TV cartel claim that the entire entertainment industry sky might have fallen if Aereo had lived. Indeed, some said, even the mighty NFL was threatened by Aereo’s antennas! Nonsense.

History shows that the TV business has always thrown a legal tantrum in the face of new technologies, including cable TV and the VCR, but soon after adopted and even embraced them. In the case of Aereo, there’s a good chance that CBS and the rest of them would have pressured Congress to impose some sort of licensing regime on the company, and that Aereo in turn would have forced the TV business to get its act together in offering more internet-based alternatives. The net result would have been a better TV experience at a better price.

Instead, thanks to the Supremes, we’re stuck with the crummy status quo, in which the TV industry treats us as dumb jerks who are to be tethered to bad technology at inflated prices.

I could go on. There’s the fact that the broadcasters who killed Aereo are sitting on huge amounts of valuable public spectrum that is supposed to be used to provide free TV. There is also the chilling effect the court’s decision, despite its assurances of a narrow ruling, could have on other would be cloud-computing startups like Aereo.

But I’ll stop here. I have to go contemplate on how to replace the terrific, $8-a-month TV service the Supreme Court just took away for no good reason. Update: Aereo officially shut down on Saturday morning.

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