U.S. Supreme Court building.

U.S. Supreme Court building. (Photo credit: Wikipedia)

After a couple of months out of the headlines – an unusual experience for a service plagued by controversy since its inception – Aereo is all set to hear from the U.S. Supreme Court later this week on whether or not it will stay in business.

Although SCOTUS may hold off until next week to announce its position on the case it heard in April, the reality is that both sides will have some recourse if the decision goes against them.


Awaiting an Outcome

For broadcasters, the threat has always been to simply remove the content that they assert is being stolen by Aereo’s micro-antennas, which rebroadcast over-the-air programming to the digital devices of their subscribers.

Other content providers like cable companies pay carriage fees for the privilege of presenting these channels to paying customers, but Aereo’s claims at the Supreme Court try to separate them from traditional players. You can read a better summary of the arguments here, but in short Aereo claims it creates private performances for each subscriber and is therefore protected by law.

Should SCOTUS agree, broadcasters are more likely to pursue other limitations and regulatory burdens to scupper the service, at least before they consider a drastic revision of the model that currently brings in the aforementioned fees.


No Killer Decision on Aereo

Aereo’s upper echelons would have the world believe that a vote against the company equals a vote against cloud software as an industry, and would immediately put the service out of business. Again, the reality of their response is likely to be more moderate.

Having invested heavily in building up a subscriber base across key entertainment markets like New York, Dallas, and numerous other major U.S. cities, Aereo is unlikely to simply shut up shop.

Aside from the potential to come to more standard rebroadcast arrangements with content owners (you know, to pay for what they take… the horror!) as every other subscription service in the entertainment industry would do, there are various pivots to its model that Aereo could take. These include sourcing content from other providers, or even exploring partnerships with independent creators seeking an audience. Either would benefit the wider entertainment industry, although recent comments from Aereo CEO Chet Kanojia suggest that paying retransmission fees is the most likely immediate solution.

Both the U.S. Department of Justice and prominent copyright experts have lined up alongside broadcasters in this case, and initial sentiment from the Supreme Court appeared to be that Aereo was trying to pull a fast one. That said, the desire to not stand in the way of developing technology is strong, as it should be, and there remains enough uncertainty around the case to make this a highly anticipated decision.

Hopefully a stand can still be made for the rights of original content creators, without killing a company that could undoubtedly use its innovation to bring entertainment to more homes and mobile devices. Aereo need not pack up and storm off in a mood if it loses.

Rather, like any growing business (or child), it should choose to take the lesson and channel its talents to a solution that works for subscribers and creators alike.