Internet start-ups can be said to profit, at least
potentially sometime in the future, by leveraging the commons, or public space,
even enlarging it in the process. Companies founded on the scarcity paradigm of
privateness and even public policy based on a de facto privatized tenet have
accordingly gone on the defensive. Although Thomas Kuhn’s The Structure of Scientific Revolutions would suggest that the old
guard must die off before the new paradigm can come into its own, the internet
revolution has shown a remarkable yet subtle persistence in “seeping through
the cracks” into the “light of day.”
Faced with a burgeoning digital landscape, traditional
commercial-television networks had already established a “rear-guard” mentality
wetted to the status quo by the time the Aereo case hit the U.S. Supreme Court
in 2014. At the time, rather than paying a cable fee, that company picked up
television signals on the public airwaves
and sent customers the signals over the internet (charging for use of the
receptors).[1]
Before the advent of cable television, “television” was free, being paid for by
the same kind of television commercials that many networks still profited from
as the Court heard the case’s oral argument; and yet, the default assumption
had (conveniently) morphed into the tenet that viewers should pay for television (including the commercials!), which
implies that the public airwaves had somehow been privatized. "You can't take our signal.
You just can't," said Les Moonvies, CEO of CBS, as if he were some
rejected child-actor.[2]
Imagine if a network CEO had made a similar exclamation in the 1960s.
"They're my airwaves, Mine!" Although copyright law deserves
protection, the networks’ use of the law to protect a “transformed” privatized
ethos of what are still public airwaves even as those companies continue to
sell and run commercial ads evinces a slight of hand that just does not meet
the smell test. Perhaps trying to get away with having something both ways goes
along with leaning too much on the status quo for support.
Also
associated with the rear-guard mentality is the lobbying strategy of erecting
legislation as an artificial bulwark that can buy some additional years of
profit. For instance, the ad- and cable-based television networks could seek to
“fortify” copyright law based on the assumption of de facto privatized
air-waves. Indeed, this assumption has kept the American people from
questioning the requirement that
political campaign ads must be purchased. If the airwaves are public and
broadcasters enjoy licenses to use the commons at a profit, then the notion of
purchased political ads could be the outlier; the licensees could legitimately
be required to run the ads gratis. Already, when the U.S. president wants to
speak to the nation, he does not pay for airtime.
Ironically, the U.S. president who had run on the banner of “real
change” (and refused public financing, which, by the way, presumes privatized airwaves) backed the old guard in the case, American
Broadcasting Companies v. Aereo. The forces with a vested interest in the
status quo are without doubt formidable. However, the internet was already
transforming the entertainment industry even before Aereo came along. So, the
significance of the case should not be overstated. On the day of oral
arguments, David Frederick, the attorney for Aereo, observed, “The
cloud-computing industry is freaked out about this case.”[3]
Regardless, the cloud industry could still anticipate a promising future. Stepping
back from the particular firms party to a dispute takes some of the airs out of
the old tires of the tired default.
Indeed, just as the stolid broadcasters were doing battle
with the fresh upstart from another era—that of the twenty-first
century—Netflix announced plans to increase prices for new subscribers. Citing
a “burgeoning roster of paying customers and profits that exceeded
expectations,” the managers of the internet-based provider of shows and movies had
decided to take their sleek operation out for a spin to see what it could
really do.[4]
Even without the new content, such as the award-winning series, House of Cards, the managers were well
within their proper purview in raising prices out of a sense that the
“burgeoning” market would bear it. That is to say, the company legitimately
stood to gain from having essentially formed a new industry, with all the risks
one would expect. Antithetically, the defense being playing at CBS and other
television networks has the distinct odor of weakness befitting an old
antiquarian who refuses to retire.
In short, industries could not but change dramatically given
all of the computer-based change unleased from the 1990s and well into the next
century. The fate of one company (i.e., Aereo, or Napster before it) pales in
comparison to the sea-change would all-but-certainly make the second half of
the new century very, very different from even its first two decades.
Admittedly, placing bets on the commercial winners and losers is fraught with
ambiguity; even so, we ought to know which team not to root for—and, even more pathetically, to be on.
[1]
Michael Wolff, “The Battle Over Aereo Will Shape TV’s Future,” USA Today, April 21, 2014.
[2] Christopher Stewart and Merissa Marr, "High Noon for
Diller's Aereo," The Wall
Street Journal, May 24, 2012.
[3]
Richard Wolf, “Aereo, Broadcast TV Collide in High Court,” April 23, 2014.
[4]
Mike Snider, “Pumped-Up Netflix Raises Its Fees,” USA Today, April 22, 2014.
