Aero TV streaming

Norman mentioned Aereo and their legal difficulties with cloud-based TV antennas. I wanted to elaborate on their case, which mostly concerns copyright, and explain how Aereo's patents fall into the picture.

Aereo is a tech company that allowed subscribers to view free-to-air television over the Internet by leasing an individual "cloud" antenna, about the size of a dime, to each subscriber for a low monthly cost. Ordinarily, one must pay for a license to stream a television channel, similar to the retransmission fee paid by cable and satellite television providers. Aereo, however, claims that they are merely providing a service to rent a remote antenna, not legally different from one physically at your home.

Television broadcasters sued Aereo, claiming copyright infringement. The lower court ruled in favor of Aereo. However, in a 6-3 decision, the Supreme Court ruled against Aereo. The majority opinion decided that Aereo was similar to a cable provider, "not simply an equipment provider". The dissenters expressed distaste for Aereo but claimed that Aereo was exploiting a loophole that Congress, not the Court, should fix. Aereo ceased to operate its service.

The role of Aereo's patents in a copyright case is a bit peculiar. At a lower court in New York, the plaintiffs wanted to question Aereo over conflicts between statements written in their patent applications and statements argued in court:

In opposing a preliminary injunction, Aereo offered up experts who stated that its internet retransmission capability was not substantially different from what consumers could accomplish with off-the-shelf components..."In their patent application, however, in an apparent effort to establish novelty, the inventors state that broadcast 'content is generally only available for display on a traditional television. There is generally no simple way for a user to have this content available to their other video-capable devices.' Although the two positions are not irreconcilable, there is a certain tension between them sufficient to warrant examination."

Aereo claimed that disclosure of its patent strategy could harm it in a future patent litigation case interpreting the scope of claims. Aereo also claimed that its communication is protected from disclosure because patent applications are product of privileged consultation with legal counsel. The judge disagreed with both claims and allowed the broadcasters to examine Aereo's patents.

In a broadcast television trade journal, Pete Putnam looked at Aereo's patent. Based on his analysis, Putnam claimed:

...it’s overly clever engineering, attempting to re-define the term “antenna” and parse legal terminology. Their entire argument for getting away with retransmitting broadcast TV content rests on those thousands of individual antennas, which...unquestionably interact with each other and are separate antennas in name only.

In short, it looks like Aereo's patent was used against them. From the perspective of the broadcasters, statements made in the patent hurt Aereo's legal credibility and demonstrated knowledge of harm. Similarly, technology disclosed by the patent served as evidence of copyright infringement and intent to circumvent the law.

I wonder whether restricting the technology by a trade secret, instead of by patent, would make it more difficult for the broadcasters to claim copyright infringement?