Wired reports that Aereo got sued yesterday. Nobody should be surprised by this.
The broadcasters added that “no amount of technological gimmickry by Aereo — or claims that it is simply providing a set of sophisticated ‘rabbit ears’ — changes the fundamental principle of copyright law that those who wish to retransmit plaintiffs’ broadcasts may do so only with plaintiffs’ authority.”
I’m sure that James Grimmelmann will have the authoritative word on this shortly, but without reading too deeply into the technology, I have to think that the broadcasters are on the right side of the law here. [update on 3/4/12 at 4:45 EST: Prof Grimmelmann says "In any sane world, Aereo would not exist" and that Aereo is just one more example of "how badly the wheels are coming off the bus of copyright law’s conceptual framework." ]
Copyright includes the distribution right and the right to make copies, and I can’t see how Aereo gets around the fact that Aereo equipment is receiving the broadcast, Aereo equipment is amplifying the broadcast, Aereo equipment is making an unauthorized copy of the broadcast in order to convert it to whatever compressed streaming format they are using, and then actually converting it to that other format. Then Aereo equipment is re-transmitting the broadcast to its users. Each of these actions is a separate violation of the broadcasters’ copyright. Aereo might be able to convince a court that the amplification and compression steps were reasonable fair use, but the re-transmission step is probably fatal.
An individual user would likely be able to claim fair use protects his right to legally perform each of these steps for his own personal benefit with equipment [like TiVo or Boxee] that he himself owns. I don’t see any way that Aereo can credibly claim that fair-use rights of home viewers should be extended to exempt Aereo from liability.
Even PBS is suing these guys. PBS gonna win.