Home Box Office introduced the “It’s Not TV. It’s HBO” slogan all the way back in October of 1996, and in spite of the fact that it seemed culturally ubiquitous in the years that followed, its penetration somehow didn’t extend to the eyeballs of Supreme Court Justice Antonin Scalia. So yesterday, during oral arguments for the American Broadcasting Companies v. Aereo, Inc. case, Aereo attorney David C. Frederick had to explain to Justice Scalia that HBO is not TV — as in, you can’t get it free, over the airwaves, since it is in fact a premium service. And these are the people who are deciding, in the words of the New York Times, the future of television. Worried yet?
A quick bit of background: American Broadcasting Companies vs. Aereo will decide the legality of Aereo’s business model, which allows non-cable subscribers to access network broadcasts by renting, for a small monthly fee, one of Aereo’s many antennae and storing programs on a remote DVR. Basically, it’s a way for cord-cutters to watch or record live TV, from their web-ready devices, pulled from the channels that they should be able to get free on their televisions; back in the day, you could use your rabbit ears to get a shoddy, fuzzy signal, and now you can get a digital antenna, which is equally unreliable.
SCOTUS is hearing the case (which you can read about in greater detail at the SCOTUS blog) because the broadcast companies say Aereo is distributing these programs without paying the exorbitant licensing fees that cable providers shell out to carry them, which is one of the reasons your cable bill is so fucking insane. And tied up in all of that is the question of copyright infringement, i.e. whether Aereo is breaking copyright law and definitions of “public performance” by making these shows available to you, and whether you’re infringing copyright by watching them. There are precedents to be considered here — namely, the Betamax case that allowed home recording of television to videotape back in 1984, and the 2007 Cablevision case that allowed cable companies to rent you a DVR.
If you’d like an in-depth analysis of the legal ins and outs, I’d direct you to Flavorwire pal Michelle Dean over at Gawker. In summary, Dean notes that Aereo has “found a way to charge people for the over-the-air signals they could theoretically receive for free, and it does feel like there’s a deliberate if clever end-run around the structure of copyright law going on here. But the idea that the only way to deliver television is the way we’ve always done it is not the most productive way of thinking of it either.”
And that’s fair. Consumers are broke, cord-cutting isn’t going away, and free digital television was not ready for prime time. Technology changes delivery, and both consumers and providers have to keep pace. Netflix has altered the entire way we think about watching television; Hulu, HBO Go, and Amazon (which just today announced a deal to stream oodles of HBO shows) continue to scramble the signal. It’s a rapidly changing industry, and the justices must rule carefully, because deciding against Aereo could have all sorts of scary implications for streaming, cloud services, and beyond.
Which brings us to Justice Scalia, one of the nine people who will make this important decision about where said industry goes. And this was the exchange yesterday (via New York):
JUSTICE SCALIA: Mr. Frederick, your client is just using this for local signals— MR. FREDERICK: Yes. JUSTICE SCALIA: —right now. But if we approve that, is there any reason it couldn’t be used for distant signals as well? MR. FREDERICK: Possibly. JUSTICE SCALIA: Possibly what? There is possibly a reason, or it could possibly be used? MR. FREDERICK: It can’t be used for distance, but it implicates— JUSTICE SCALIA: What would the difference be? I mean, you could take HBO, right? You could carry that without performing. MR. FREDERICK: No, because HBO is not done over the airwaves. It’s done through a private service.
I’ve told this story before, but sorry, it’s applicable: As a ten-year-old kid, one of my most marketable skills was the ability to set up a VCR (they were these machines where you recorded things to tape, and — oh never mind). So when my dear sweet grandmother and grandfather bought their first VHS deck, I came over to hook it up, and to show them how to use it. The program of choice was the latest home game for Grandma’s beloved Wichita State University Shocker basketball team. When the game started, I showed her how to hit record. A few minutes into the game, I noticed that her game-watching, which was usually boisterous and energetic, peppered with “Hot dog!”s and “Atta boy!”s, was oddly passive. She hadn’t said a word, in fact. I shot her a confused look, and she responded, in a heavy stage whisper, “Does it record everything we say?”
It’s a cute story of old-people technological cluelessness, but here’s what’s important: my grandmother wasn’t charged with ruling on the Betamax case. Maybe Scalia’s total ignorance about a 40-plus-year-old service whose primary defining characteristic is its status as a premium channel isn’t worrisome — maybe it’s just his well-known slant towards Originalism. (He won’t watch any channels the Founding Fathers didn’t watch!) But it does seem like the people who make these decisions should have some remote idea of the real-world implications of said decisions. Then again, for the Supreme Court, that’s not exactly the way the game is played these days.