In a decision that disappointed but didn't entirely surprise broadcasters, the U.S. Court of Appeals for the Second Circuit today declined to rehear in banc its earlier decision rejecting a request by broadcasters to terminate with extreme prejudice Aereo's broadcast subscription service in New York. Today's announcement was not a decision on the merits, but merely the result of a poll taken among the Second Circuit judges in which less than a majority indicated an interest in hearing the case in banc. Barring an effort by broadcasters to seek Supreme Court review (and Fox, at least, has indicated that option is not off the table), the matter will return to the trial court for a full trial on whether Aereo is infringing on broadcast copyrights.
Once again, Second Circuit Judge Denny Chin, who had been the district judge in the earlier Cablevision case on which Aereo has built its business, dissented from today's decision. His dissent is respectful but spirited, and so thoroughly dismantles the court's earlier decision in favor of Aereo that a reader new to the dispute could be forgiven for being mystified as to how the other two judges on the original panel could have reached a contrary conclusion.
As interesting as the legal dispute itself is (at least to lawyers), the end result may well be governed more by technology than by law. If you have spent much time in the communications world, you have heard the old saw that "the law struggles to keep up with technology." In the case of Aereo, however, it has been quite the opposite, with technology struggling to keep up with the law.
After the Second Circuit's decision in Cablevision created, as Judge Chin's dissent today puts it, "'guideposts' on how to avoid compliance with our copyright laws," Aereo and others apparently raced to develop technology that could neatly fit through the legal loophole Cablevision ostensibly created. Judge Chin is obviously not a fan of such reverse engineering, noting today that "[i]n my view, however, the system is a sham, as it was designed solely to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law purportedly created by Cablevision."
So far, the Aereo legal proceedings have presumed that Aereo was successful in its engineering efforts, and that its "one tiny antenna per subscriber" approach allows it to technologically clear the legal hurdles of the Copyright Act. Those familiar with the intricacies of radiofrequency engineering, however, have been quick to point out that the biggest obstacle to the Aereo system isn't the laws of copyright, but the laws of physics.
One of the immutable laws of RF antenna design is that the size of the receiving antenna must correlate to the wavelengths it is meant to receive. As a result, high frequency devices (which means short wavelengths) can get by with smaller antennas, whereas the comparatively massive wavelengths of TV signals require much larger receiving antennas. That is why, during the golden age of over-the-air TV reception, and during the silver age of over-the-air HDTV reception, the promises of smaller and smaller antennas that would work "just as good" as hulking rooftop antennas never came to fruition.
Aereo's claim of reliable reception with dime-size TV antennas (particularly in New York, the world capital of urban multipath interference) therefore seemed more akin to alchemy than to advanced RF antenna design. However, with the exception of patent lawyers and a fair number of communications lawyers, engineering expertise is not a common skill in the legal trade. As a result, the debate over Aereo has focused on that which lawyers know--the law--rather than on that which determines whether Aereo even fits within the legal loophole it claims to exploit--incredible advancements in TV antenna design.
Communications lawyers are perhaps more sensitized than most to the law/engineering dichotomy, as communications is one of the few fields where engineering solutions to legal problems are often an elegant alternative to brute force legal tactics. Because of this, one of the most interesting commentaries on the Aereo dispute I have come across is a piece by Deborah McAdams titled Aereo's Unlikely Proposition.
It is a very intriguing article (and well worth a read) in which a number of engineers discuss why the "fits exactly into the shape of the loophole" system described by Aereo can't exist in the real world. In other words, that Aereo isn't an example of the law falling behind technology, but of technology being unable to produce an antenna capable of outrunning the law. If true, then the success of Aereo's legal battle hangs not on whether it has a groundbreaking legal theory, but on whether the claimed antenna technology emerged from Aereo's engineering department, or from its marketing department.
In either case, Aereo's claims for its technology would be better assessed in an RF testing lab than in a courtroom. Extended debate over the legality of Aereo's claimed technology is pointful only once it has been confirmed that Aereo has indeed created a revolutionary antenna technology that functions as described. If not, then the legal wranglings over a theoretical retransmission system are much ado about nothing.