There’s nothing like Twitter to remind a reporter that, in the age of BuzzFeed, an exclusive does not necessarily command the attention it once did. Last week, Variety’s Ted Johnson was the first to report that broadcasting giants like Comcast and Fox were about to try to take their fight with the startup Aereo—which, for a fee, will stream network TV to a customer’s computer—to the Supreme Court. The story was picked up by the Wall Street Journal, and, after the petition was filed, by publications as varied as Reuters, Quartz, and the New York Post. But on Twitter, the day the news broke, the story hit with a thud—two retweets, one favorite. Variety’s readers were much more excited (254 retweets more excited) about Julian Assange’s snippy, epistolary smackdown of Benedict Cumberbatch and The Fifth Estate film.
There is inherent news value in a Supreme Court petition, and, sure, the audience for this sort of incremental business scoop is different from the audience for edgy Assange-on-Cumberbatch action. But few outlets did a good job of flagging how fun this story is and how important to anyone who likes watching TV. In other words, most publications gave this digital-age story analog-era treatment.
Aereo is a relatively small operation, but this isn’t a fight between behemoth broadcasters and a scrappy upstart.. It’s a battle between media giants over the future of how we’re all going to watch TV. Aereo is one of those companies that is trying to elbow its way into television by catering to demand that larger, more established business have been slow to fill. It’s backed by big money, including media mogul Barry Diller. The company is making a play for so-called “cord-cutters”—people who aren’t willing to shell out for an expensive package of bundled cable but who will pay a lower fee for services like Netflix, with its rich back catalogue of shows, or HuluPlus.
It doesn’t make sense for broadcast companies to stream shows live, with less lucrative internet ads, when plenty of people are still watching those shows on an actual television or coughing up money each month for a bundled cable subscription, from which broadcasters receive revenue, too. But, even among the cableless, there is still a demand for live (or almost-live) TV. (Especially when TV-watching rises to the level of cultural event—just look at the spike in illegal downloads and streaming of the Breaking Bad finale.) Aereo caters to this demand: Its tagline is “Watch Live TV Online.” In New York, subscribers can watch CBS, NBC, FOX, ABC, CW, PBS, and a handful of other channels. Aereo charges $8 per month.
Cable companies have to pay high “retransmission fees” to broadcasters, but Aereo is trying to get around that with clever technology. The company says that what it’s actually selling subscribers is access to an antenna, not unlike the one you would use to tap into broadcast networks on a TV. It’s just that this antenna is tiny, and located in an Aereo facility with thousands of other antennas. This is where the legal question comes in. Under copyright law, the owner of a particular work controls how it’s transmitted to the public. Cable companies are paying for the privilege of distribution. But courts so far have agreed with Aereo that it’s doing something different—the Second Circuit described the company’s business as “making multiple private transmissions of the same work.”
The broadcast companies are asking the Supreme Court to weigh in on what counts as a public performance—“whether a company ‘publicly performs’ a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.” It’s actually a fascinating question. What does “public” mean when we collectively consume media alone in our homes?
Copyright law defines “publicly” as “any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” Does Twitter count? Is watching a TV episode live and online more like watching TV with a group of friends at home? Or more like going out to a bar and watching it with strangers?