Aereo is dead — long live Aereo.
While the Supreme Court's 6-3 decision Wednesday finding Barry Diller's digital antenna and cloud-based DVR violated broadcast networks copyrights, the dissenting opinion left the door open for an Aereo 2.0-type of innovation.
The intriguing Plan B, in Justice Antonin Scalia's dissent, criticized the majority opinion's "looks like cable" rule — claiming it provides "the shakiest of foundations" for taking down Aereo.
The justice began by asking what's really behind the cable-lookalike rule? Was it something as simple as offering access to live television?
Scalia proceeded to answer his own question by reasoning: "If similarity to cable-television service is the measure, then the answer must be yes."
And if the answer is yes, he continued, the path to a legal version of an Aereo-like disrupter becomes perfectly clear: "Aereo would be free to do exactly what it is doing right now so long as it built mandatory time shifting into its 'watch' function."
In other words, what if the "watch" function became a "record" function — one that allowed subscribers to save programs as they aired but prohibited their being viewed before their completion?
"A subscriber could watch the 7 p.m. airing of a one-hour program any time after 8 p.m.," Scalia offered by way of example.
This, in turn, would make Aereo's technology more like that pioneered by Sony Betamax — a device that also recorded programs for later viewing.
And it was way back in 1984 that the same court now denying Aereo determined the sort of "time shifting" permitted by Sony Betamax was not illegal.
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