We think investor Barry Diller had it right the first time when he signaled that a Supreme Court decision against Aereo was essentially the death knell for the service, which took a creative but ultimately crooked path to delivering TV station signals online.
But fans of zombie shows know it’s hard to keep a good body down. Aereo is trying to get the courts to believe it is actually a cable system subject to a blanket license, arguing that, like cable and satellite operators, it delivers a public performance. Of course, that Aereo argument comes after the company insisted in the courts up to and including the Supreme Court oral argument that it was not delivering a public performance.
Other cable-like over-the-top services have to pay for the privilege of delivering copyrighted content over the Web, but they aren’t eligible for the blanket license either per the Copyright Office and, at least tentatively, by the FCC. The commission has signaled that without the facilities element— owning the network—over-the-top providers are not multichannel video programming distributors.
If Aereo’s business model can support negotiating for carriage, they should go for it. But calling itself a cable operator does not make it so.