McAdams On Aereo: Wordplay v. Science

TRANSPARENCY—The Aereo controversy is about many things. It’s about the use of language to manipulate public opinion. It’s about how the explosion of IP technology has left media law in the dust. It’s about the deterioration of ownership boundaries and the maturing public perception that all media content should be free in perpetuity.

What it is not about is technological innovation.

“Innovation” is the persecutory term of choice in Washington, D.C. Its usage seeped out of the Silicon Valley argot that condescends to anyone who doesn’t code, and makes billionaires of those who do, regardless of whose privacy and rights are violated. Opposing something that this anarchic core elite has deemed an “innovation” is like admitting ill will toward puppies.

“Innovation” is the key word employed in Aereo’s PR strategy. Aereo chief Chet Kanojia has used it like a hammer, along with the meme of consumer benevolence, since Aereo was announced.

“Innovations in technology over time, from digital signals to digital video recorders, have made access to television easier and better for consumers,” he said March 1, 2012, in response to the initial lawsuits filed by broadcasters that led to a review by the U.S. Supreme Court on April 22.

“The Aereo technology is functionally equivalent to a home antenna and DVR, but it is an innovation that provides convenience and ease to the consumer,” Kanojia said last December. Even the sentence structure here is contradictory. Aereo is something, but it is something else.

“The broadcasters’ positions in this case, if sustained, would impair cloud innovation,” he said in a more recent statement reflecting Aereo’s latest legal strategy of trying to frighten the judiciary into believing that if it takes down Aereo, it takes down the cloud.

So successful has Kanojia’s wordplay campaign been that his patois is parroted by the consumer press without question. E.g.:

“I had the privilege of spending a couple partial days with Kanojia, and meet some of the other people behind this innovative company,” Christine Lagorio-Chafkin wrote recently for Inc.

Aereo’s strategy of casting itself as a bootstrap upstart simply trying to friend consumers obscures the fact that it is backed by an e-commerce billionaire whose only interest in consumers is their routing numbers. It overlooks the reality that Aereo has been funded to the tune of $100 million and launched with every intention of getting sued by broadcasters, whose signals the service resells without permission.

Perhaps most effectively, it deflects attention away from Aereo’s use of junk science to circumvent copyright law.

This last point is pivotal. Aereo claims to have done something no other radio frequency engineer has ever achieved—to be able to pick up TV signals independently with dime-sized antennas stuffed into one large array. The first provisional patent application for this was filed in November of 2010, just 16 months before the service was launched.

That means that Mr. Kanojia and Joseph Thaddeus Lipowski achieved in less than two years what the combined minds of RCA Labs, Zenith and LG have never been able to do—create a TV antenna that is a tiny fraction of the size of the radio frequency wave it’s designed to receive, which does so discretely even while packed together with hundreds of others.

This presumed technological breakthrough is the foundation of Aereo’s legal defense. The legal precedent being employed here is the 2008 Cablevision case in which the cable operator’s remote DVR service was defined as one providing a “private performance,” and therefore not subject to copyright law.

Aereo claims to do the same thing by renting each of the tiny antennas to a specific user, who can then either watch live TV or access their own, digital copy of a program from cloud storage.

One inconsistency with Aereo’s use of the Cablevision precedent is that Cablevision pays retransmission and carriage fees for the initial signals. Aereo notably does not, and never so much as offered to negotiate for them. The other inconsistency is that the one-antenna-per-user model necessary for Aereo’s Cablevision defense defies physics according to every radio frequency engineer with whom I’ve spoken.

(Pete Putman provides an excellent illustration with “Deconstructing Aereo’s Patent.”) What Pete and his peers say is that Aereo’s arrays would have to act as one, large antenna that receives distinct TV signals and disseminates them to many people for a fee. This would make Aereo a multichannel video program distributor subject to copyright law, and by extension, retransmission consent:

“A multichannel video program distributor is an entity such as, but not limited to, a cable operator, a BRS/EBS provider, a direct broadcast satellite service, a television receive-only satellite program distributor, or a satellite master antenna television system operator, that makes available for purchase, by subscribers or customers, multiple channels of video programming.”

This one-to-many configuration comprises a “public performance,” and is therefore subject to Copyright Law. The point of whether or not Aereo is a cable system was brought up several times by the justices, who also pressed Aereo’s attorney David Frederick on the antenna design.

“There’s no technological reason for you to have 10,000 dime-sized antennae, other than to get around copyright law,” Chief Justice John Roberts said to Frederick.

Aereo has in fact slowly backed off of its initial insistence that each tiny antenna is assigned to an individual user. Now it’s just “some.”

“Some are statistically assigned to particular users,” Frederick said during the proceedings.

So then, some—not all, but some—users are each assigned a specific antenna, for an unspecified period of time, while others may use several over the course of a session or at any time, implying that the signals are being received over the entire field of the array, like a single antenna.

This means that Aereo could be found in violation of the Copyright Act simply because it fits the definition of a cable system, leaving the public-private performance question and the cloud out of it. And likely it would have been already in the lower courts had the plaintiff’s expert witness not phoned in his testimony.

The public perception that Aereo represents technological innovation that broadcasters are trying to quash out of greed is nothing but a successful public relations campaign, pure and simple. Otherwise, Aereo’s architects would have gladly demonstrated the technology to experienced RF engineers rather than blocking questions about the patent applications in lower court depositions. Applications that U.S. Magistrate Judge Henry Pitman referred to as consisting of Kanojia and Lipowski’s “own sworn statements.”

“Pitman also dismissed what he called the ‘rather odd argument’ that forcing the executives to testify about the patents in this copyright dispute ‘could later potentially be used in an entirely different context’ against them,” Courthouse News Service reported.

Unfortunately, the discovery obtained in that deposition is sealed.