Fair use is also implicated. Aereo's lawyer cited a 1984 Supreme Court case, Sony v. Universal City Studios and a Second Circuit case involving Cablevision (available here.)
In Sony, this Court held that consumers have
a fair use right to take local over-the-air broadcasts and make a copy of it. All Aereo is doing is providing antennas and DVRs that enable consumers to do exactly what this Court in Sony recognized they can do when they're in home and they're moving the equipment, the antennas and the DVRs.
....the Second Circuit in CableVision ... said user specific, user initiated copies are private performances. They are not public performances.
For some reason, the Justices seemed pre-occupied with why Aereo uses thousands of tiny antennas (the size of a dime) instead of a giant antenna. Chief Justice Roberts and a few others thought the rationale behind using so many tiny antennas was to skirt the copyright law. When asked to explain, Aereo's lawyer provided this explanation which makes sense to me. As a start-up company, it has no idea what demand will be. So rather than invest in a huge antenna, it uses tiny antennas and adds more as demand increases.
One Justice asked why people would use Aereo. Here's their answer:
Because if you don't have to buy a TV, a DVR and an antenna and a sling box, which might cost you thousands of dollars...[I]f you want to just look at programming selectively, you pay $8 a month, it's a rental service.
Just because you rent equipment does not transform the person that is providing that equipment into a public performer, particularly when you are the one who initiates every set of signals that activates the programming and the content.
...We wanted to tell consumers, you can replicate the experience at very small cost. You know you have a right to put an antenna on your roof and put a DVR in your living room. We can provide exactly the same antenna and DVR for a fraction
of cost by putting it over the cloud.
If consumers can make a copy of programs broadcast on free, public over-the-air channels for their own personal use, then it seems to me all Aereo is doing is providing a means for people to do just that.
