I attended the ABC v. Aereo oral arguments in the Supreme Court Tuesday and had a great time overall. Lots of people have written about the case and the arguments—Ali Sternburg, my line-standing buddy, has eight takeaways that are excellent—but one largely unmentioned line from the broadcasters’ lawyer really drove me up the wall. In the very last few minutes of the case, the attorney Paul Clement said this about Aereo:
if they actually provide something that is a net benefit technologically, there’s no reason people won’t license them content. But on the other hand, if all they have is a gimmick, then they probably will go out of business and nobody should cry a tear over that.
That idea, that the best technological solutions will have no problem locating all the necessary rightsholders and negotiating feasible deals is just ridiculous. It’s either totally naive or intentionally disingenuous. Fortunately, Justice Breyer (who is one on the Court who really understands copyright issues) called him out:
Once you take them out of the compulsory licensing system, they’re going to have to find copyright owners, who owns James Agee’s pictures? Who owns something that was written by like a French silent film in 1915? I mean, the problem is that they might want to have perfectly good things that people want to watch and they can’t find out how to get permission. That is a problem that worries me and it worries me again once you kick them out of the other systems.
Breyer is spot on, and he’s even being generous. Excessive copyright terms have exacerbated an orphan works problem that makes any use of anything produced in the last 100 years or so an exercise in uncertainty. But beyond that, there’s never ever been an example of a permissions culture that functioned like a free one. This is exactly the point I was getting at when I compared Netflix’s first-sale based DVD selection with its much, much weaker permission-culture streaming library.
Anyway, it’s good to see a justice call out that kind of blatant falsehood spouted in the Court. I hope Breyer is able to convince his colleagues about the big issues at stake with these tiny antennas.