Aereo lost in the Supreme Court today. There will be broad headlines, but actually the decision was narrow and had to be -- and that's important.
Today's ruling attempts to not reach to whether a delayed version of Aereo violates the Copyright Act.
In that sense, Aereo may evolve to a service that lets you DVR over the air broadcasts and watch those from the cloud after they’re fully recorded. That would fill an important niche in the ecosystem for those who want to free themselves from their cable or satellite television bill.
But that’s not the most important time shifting issue. The most important time shift is to reflect back 13 years ago to 2001 when the Music Industry won the Napster case.
Consumers want access to television on three screens (TV, tablet, and phone) inexpensively and interchangeably across all platforms now -- just like they wanted access to the world's recorded music at their fingertips and on devices that travelled on their jogs or commutes in 2001. Napster showed consumer demand -- and, in what looks obvious in retrospect, the resulting consumer behavior: downloading music on demand wanted, paid for or not. Labels moaned about "piracy," willing to spend millions to prosecute consumers, but not to create a model that would give them their content easily, affordably and legally. It would take almost a decade for the Music Industry to figure out a way to accommodate consumers and yet also make money, taking baby steps to make iTunes, Beats and Spotify commercial successes (albeit begrudging steps and unequal successes, depending on your perspective).
It should have been a wake-up call in 2001. Instead it was a very, very expensive snooze alarm, training millions in the art of easy on-demand content and inadvertent, maybe even unintentional piracy.
The strong early adoption of Aereo’s service provides the same sort of wake-up call to the television industry: they have to get past the fear of freeing their shows for easy use on all screens at inexpensive prices. The good news is that customers have been acclimated to the classic “is it on Netflix? No, Is it on Amazon? No. Is it on Hulu? No. Well, darn – time to BitTorrent.” The bad news is that unless the TV business moves faster, they too may train society to just skip to the last step so they can actually watch what they want to watch -- on their TV, or on an airplane, wherever. If television is not careful to make its content affordable and convenient, it may be the next content that becomes -- quite casually -- free, and pirated.