Watching TV Is Not Illegal, Any Way You Do It

By Gary Shapiro

The innovation wars are upon us. For the second time this year, established media powers are attempting to use the court system to stifle innovation that threatens to disrupt the comfortable status quo. For our economy’s sake, we should all hope the innovators prevail.

In May, broadcasters took on DISH Network to challenge its advanced “Hopper” DVR system, which allows consumers to automatically skip over commercials in some cases. On Friday, a judge in California rejected a preliminary injunction against DISH while the case is determined, but Fox has appealed to the Ninth Circuit Court of Appeals. Now, broadcasters are going after Aereo, a web-based service that helps New York City residents receive over-the-air television. In large cities like New York, skyscrapers often block traditional over-the-air signals, so Aereo provides customers with a special antenna that improves reception.

Aereo users can watch live TV broadcasts and use DVR-like capabilities at home or on mobile devices. The ingenious solution to a widespread problem has been met with rave reviews from consumers. Broadcasters have reacted differently. They are suing to stop the service because they claim it retransmits copyrighted content. 

The DISH and Aereo cases are similar, and together serve as a bellwether for our collective commitment to innovation. The question is whether the courts hearing these cases will continue the U.S. court system’s noble tradition of supporting disruptive innovators over the status quo.

The Aereo case is reminiscent of the most important legal decision in the history of the consumer electronics industry: the 1984 Supreme Court decision in Sony Corp. of America v. University City Studios Inc., more commonly known as the Betamax case. In Betamax, spurred by the innovation of videocassette recording capabilities, the Court held that full recording of broadcast television can be a fair use and that products are legal if they have significant non- infringing uses. The case set the U.S. judicial system firmly on the side of innovators, and paved the way for today’s digital recording standard, which has revolutionized the way we consume televised entertainment.

The common thread among these cases is that technology has outgrown the status quo faster than the established industries like. In the Aereo case in particular, the plaintiffs are attacking technological innovation that advances the broadcasting industry by giving consumers increased access to free, over-the-air broadcasting. Rather than adapting, the status quo broadcasters are trying to stop the disruptive innovators and maintain control over consumers’ television-watching choices. For all the complaints broadcasters have about Aereo, the simple truth is that the technology has improved consumers' access to free, over-the-air programming broadcast on the public spectrum.

One federal court in New York has already sided with the innovators, denying a preliminary injunction to stop Aereo’s service while the case is argued. But during this age of rapid technological innovation, the very threat of possible anti-innovation court decisions in cases like DISH and Aereo risks chilling innovation. That’s why my organization, the Consumer Electronics Association, teamed up with the Electronic Frontier Foundation and Public Knowledge to file an amicus brief in the 2nd Circuit Court of Appeals in support of Aereo and the countless other disruptive innovators who will be affected by this decision. The court should defend their right to innovate, not chill it.

Our legal system has favored and must continue to favor innovation over the status quo. American exceptionalism and our economic growth rely on innovation, and we must fight legacy industries seeking to maintain their old ways of doing business by stifling the innovators and entrepreneurs who are creating the future.

 

This post has been edited to include an update on the DISH Network case.

Gary Shapiro is president and CEO of the Consumer Electronics Association (CEA), the U.S. trade association representing more than 2,000 consumer electronics companies, and a New York Times best-selling author. His latest book, Ninja Innovation: The Ten Killer Strategies of the Worlds Most Successful Businesses, will be released in January. Connect with him on Twitter: @GaryShapiro.

 

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