Professors: Aereo Is Healthy Response to Dysfunctional System

Argue broadcasters have obligation to prioritize wide dissemination above copyright fees
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Aereo definitely has friends in a trio of law professors who weighed in on its side with the Supreme Court this week.

In their amicus brief, the professors called Aereo a "healthy free-market response to a dysfunctional and anticompetitive television distribution system that raises prices, reduces output, and denies consumers meaningful choice."

They say broadcasters have a responsibility to support the wide dissemination by Aereo of their free TV signals, a responsibility given their spectrum grants that trumps the pursuit of copyright payments.

They point out that broadcasters have two limited government monopolies, access to free spectrum--free except for the public interest standard--and certain exclusive copyright protections of a "fair return" for their creative investment in local programming.

But the academics argue broadcasters undermine their public interest obligation to free, over-the-air TV by invoking copyright law.

They say Aereo simplifies access to those over-the-air signals, signals that already ensure a fair return to broadcasters through ad revenue. Granting broadcasters the relief from Aereo they seek would "decrease the output of local television broadcasting and leave consumers with very limited, technologically deficient and expensive choices for obtaining local programming," they say.

If broadcasters want to pursue copyright payments free of the public interest responsibility that goes with them, they are free to do so.

"Petitioners are free to relinquish their valuable broadcast license to explore exploiting their copyright interest on channels without public interest requirements such as subscription-only channels or paid-download applications.

Instead, Petitioners have opted to continue benefiting from the distribution of their programming via spectrum broadcasting because it remains the most widely accessible method of television viewing. As long as they do so, they must uphold their end of the bargain by supporting the wide accessibility of broadcast television."

The professors clearly have issues with broadcast TV. "Petitioners [broadcasters] invoke a strained interpretation of copyright law to further their stranglehold on television distribution," they conclude.

Filing the brief were Warren Grimes, a professor of law at Southwestern Law School and co-author of The Law of Antitrust: An Integrated Handbook; Shubha Ghosh, law professor at University of Wisconsin Law School and cofounder of the American Antitrust Institute;Joshua P. Davis, associate dean for academic affairs, professor and director, Center for Law and Ethics at the University of San Francisco School of Law; Christoper L. Sagers, professor of law at Cleveland State University; Michael Epstein, media and communications law, Southwestern Law School, and Andrew Pletcher, J.D. candidate, Southwestern Law School.

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