Prof. Doug Lichtman, UCLA School of Law
July 3, 2014

The Supreme Court has now spoken in Aereo, and my colleagues here and elsewhere are actively discussing the Court’s opinion and its implications.  I will join that conversation at some point down the road, but for now I want to take a slightly different approach and talk briefly about what it means to innovate.  What does that topic have to do with Aereo?  The link is that, during the pendency of the case, many people were sympathetic to Aereo because they thought of Aereo’s technology as innovative.  But that was a fundamental mistake.  The Aereo system was new, sure, but it was not “innovation” in any sense of that word.

To see my point, ask the rhetorical question of why no prior business had developed a system exactly like Aereo’s system.  If the answer were something about the difficulty of creating such a system, then a conversation about innovation was clearly in order.  If the answer were something about a problem that previously seemed unsolvable, again a conversation about innovation would have made sense.  But if the answer is that the technology is horribly inefficient and has value only because it was a way to exploit a perceived imperfection in the law, then “innovation” seems a problematic misnomer.

Bluntly, society did not need Aereo and its clunky band of antennas in order to put broadcast television onto the Internet.  ABC, for instance, knew how to do that already, and indeed ABC had technology that could achieve the aim more efficiently.  ABC, after all, had the ability to access its own television feed directly from the source, with no concerns about the imperfections caused by sending the signal into the air and then pulling it back down again.  And ABC did not need to invest in arrays of miniature antennas, either.  ABC was in a position to stream its broadcast signal online in exactly the same way that Hulu and Amazon stream their video signals, complete with the possibility of speeding up delivery by using content delivery networks to cache content at locations closer to end-users.

So why didn’t we have a free, online version of ABC, available to all?  Not because the world was yearning for innovation.  Instead, because for various business reasons it is not, at the moment, in ABC’s interest to do that.  Some people might disagree with that business judgment.  Some people might agree with that business judgment and simply wish it weren’t so.  But to describe as “innovation” a technology that could claim as its only true achievement its ability to trump ABC’s business judgment by taking an asset that belonged to ABC, using it in a way contrary to ABC’s own interests, and refusing to compensate ABC for the harm caused?  That might be a fun business for the proprietor while it lasts, but I cannot see how that can be fairly praised as a step forward.

This distinction is enormously important.  While I do not as of yet have my own fully satisfying articulation as to what the word “innovation” ought to mean, I am convinced that too permissive a definition causes substantial harm.  After all, there are real innovations that should cause lawmakers and copyright courts to, in certain situations, trim copyright rights so as to ensure that copyright law does not inadvertently slow technological progress.  But if every gimmick is allowed to wrap itself in that flag, no matter what the technology’s true achievement, value, or motivation, that argument will ultimately lose its force.  Like the boy who cried wolf, the technology community will find itself rightly identifying an important policy constraint on copyright law in general, and yet no one will be willing to listen, because everyone will remember that last time those same advocacy groups and companies were just talking about some sham like, well, Aereo.