Broadcasters use public airwaves to transmit content, and part of what the FCC does is regulate broadcast stations and ensure that the limited amount of spectrum that can be used for television broadcasts is being utilized in the public interest. If more viewers are able to access that content, whether through broadcast TV or the internet, then that's a good thing, Aereo contends.
Last month, Aereo won a court battle in which U.S. District Judge Alison Nathan ruled that Aereo's service constituted private, not public, performances. Aereo said in a subsequent statement that "today's ruling to uphold Judge Nathan's decision sends a powerful message that consumer access to free-to-air broadcast television is still meaningful in this country and that the promise and commitment made by the broadcasters to program in the public interest in exchange for the public's spectrum, remains an important part of our American fabric."
But Oxenford said the public interest argument is irrelevant. He compared what Aereo is doing now to what cable systems originally did when it came to transmitting programming.
"Before cable systems had all their own programming…all they did was retransmitted broadcast stations," he said.
"Congress looked at that and amended the law to make it clear that a retransmission of a broadcast signal was a public performance. You can see that a broadcaster really doesn't see any difference to Aereo."
However, much like the other copyright laws that have become archaic in modern times - the House Judiciary Committee agreed that's the case and announced on April 24 that it would undergo a comprehensive review of U.S. copyright law - that law may need rewriting.
Currently, "broadcasters have very specific rights as to what they can do with their programming," Oxenford said. "In many cases [those rights] don't include internet retransmission."
So why should Aereo be able to do with broadcasters' legally licensed content what the broadcasters aren't allowed to do? There's no clear answer, and Aereo has never addressed this question as far as we know. This particular issue may be decided when the House committee makes its copyright law review, or it may be made irrelevant by further court rulings. Either way, there are still other factors to consider.
One giant DVR
Oxenford found a touchstone for the Aereo battle in one Cablevision fought in 2008, when it earned a victory that ensured the legality of remote DVR.
Oxenford explained the argument like this: "If the consumer has a DVR at one end, why not let him put it at the cable head end? It's just moving the DVR from one end to the other, so what difference does it make?"
But is that all that Aereo is? Just one giant DVR sending content out to all its individual users? The particulars of Aereo's streaming process involve individual antennas that send content to each subscriber, a key fact in the company's argument that the service constitutes private and not public performances.
Even that claim may not hold water, as TV stations have argued that the system of multiple antennas is really functionally identical to simply having one large antenna like the stations do, according to Oxenford's blog writings.
Service or sham?
Ultimately the problem, as with many legal cases, is an issue of perception. Broadcasters see things one way, Aereo sees them another, and those views are mutually exclusive. The only question that remains is how the courts will interpret it. So far, the answer has been in favor of Aereo.
That's not to say there hasn't been opposition, even from the people in black robes. The Second Circuit Court of Appeals' recent two-to-one ruling that Aereo's service is a private performance put the company in high spirits, but the dissenting judge called it a "sham" designed to evade the royalties that it should legally be paying.
And as Oxenford pointed out, a similar case involving a smaller company called ivi (pronounced "ivy") that was essentially doing the same thing as Aereo was squashed rather succinctly in 2010 and 2011.
Oxenford noted the Aereo case could ultimately have repercussions across multiple industries.
"If you redefine a public performance as the Court did in [the Aereo] case, one can imagine many other systems, not involving broadcast signals, where the transmission of content on demand to individual users is not seen as a public performance but instead as a private one - in attempts to avoid paying public performance royalties or licensing obligation," he wrote on his blog.
And let's not forget the fact that Fox and CBS have both threatened to switch the companies' entire models from over-the-air broadcasts to cable only. Both companies made it abundantly clear that it's something under serious consideration, and Oxenford said those actions are a definite possibility.
Yet Aereo has no intention of slowing down, recently announcing plans to expand to Boston, and this battle will almost certainly hit the Supreme Court somewhere down the road. As Oxenford pointed out, the only thing we can do now is tune in and watch this 21st century broadcasting battlefield crackle to life.
