The Revenge of Jack Valenti

Techdirt reports that the Supreme Court has just outlawed Aereo.

This is bad, folks. This is really bad.

If you’re wondering why this is bad news, I recommend you head back to Techdirt and check out some of their other posts, including these two:
Why Do So Many People Describe Aereo ‘Complying’ With Copyright Law As The Company ‘Circumventing’ Copyright Law?
Broadcasters’ Lawyer Lays Out Every Bogus Trope Possible Against Aereo

As far as I can tell, this decision rejects a lot of well-established precedent (making a mockery of the so-called “rule of law”) and ignores a lot of technical details (details that the consumer is not allowed to ignore; remember that breaking DRM is illegal even if the DRM is preventing you from doing perfectly legal things) in favor of handing more power over to the “content creators”, meaning the publishing and broadcasting companies. Now, ignoring the letter of the law is not something I necessarily oppose; the “rule of law” is not a good concept, and there are times when you should set aside the letter of the law to better fulfill the spirit. But consider the spirit that the Supreme Court has established here. It appears to me to be a spirit of control, dictating who can record and view the broadcast companies’ precious signals. It looks to me like a spirit of assumption of guilt. Consider this excerpt from the official decision; after the court notes the technical differences between Aereo and cable, it dismisses them:

But this difference means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into “a copy shop that provides its patrons with a library card.”

In other words, because Aereo feels like cable, it must be cable.

If that still doesn’t strike you as awful, consider this hypothetical. Someone makes a car that looks a lot like a plane, and designs the controls and driver’s seat such that driving the car feels a lot like flying a plane. But it can’t fly; in fact, its “wings” are spoilers that push the car into the ground, and its engine is within street-legal limits so it could never provide enough thrust to get off the ground, and so on. Of course, the reason the car looks and feels like a plan is because that’s its selling point – the car maker advertises the special car as “feeling just like flying!” The FAA catches wind of this, takes a look at the car, and says: “This is a plane. You need a pilot’s license to operate it.” “But wait!”, the maker protests. “It can’t fly at all! It’s within legal limits and safe for street driving, and I can prove it!” “Doesn’t matter”, the FAA replies. “It looks like a plane and feels like a plane, so it’s a plane.” And so the special car never takes off (pun intended), because it’s useless as a plane but you have to have a pilot’s license to drive it.

This is what the Supremes have done to Aereo. They have ruled that perception trumps reality. Sorry, Aereo, but you make the cable companies feel bad, so you have to go.

But this is nothing new in IP law. Techdirt has another good post on this subject: The Bizarro, Fact-free World Of Copyright Policymaking. The crux of that post is that when it comes to “intellectual property” law, evidence doesn’t seem to matter at all. Everything is based around perception. If sharing a file feels like theft, then theft it must be, even if this defies sound information theory and negates the concept of freedom of expression.

Jack Valenti and his co-conspirators failed to kill the VCR, but they never give up in their fight for control. And why should they give up? By the time the Betamax came around, they had already captured the cable companies. And now, though Jack is dead, his spirit lives on, and his successors have captured Aereo, and they’re probably going to kill it, because Aereo dared to offer a service that they didn’t control.

Don’t let the hype fool you, folks. We may have the freedom to complain, but we don’t live in a free country. The elites make the rules for their own benefit, and Valenti cackles from the grave.


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