Will Aereo's Honor System Pass the Legal Sniff Test?


It’s been more than 48 hours since I requested an invitation to try Aereo’s TV-slinging Internet service, with four different email addresses, and I haven’t heard a peep from them.

Aereo said it launched the service March 14 and was open for business. But I didn’t get even a “Thanks for registering!” reply. Maybe their however-many-thousands of itty-bitty antennas are already being used (see Aereo Wait-Lists New Yorkers On Internet TV Service).

[UPDATE: An Aereo rep emailed me with this explanation: “This is all part of the rollout strategy and invites will systematically be sent out on an ongoing basis. This is very similar to what Gmail initially did with their platform and what services like Pinterest are doing today. Also, Aereo does not want to inundate users with emails. All users are initially thanked for registering on the registration sign-up page.”]

But as a Fourth Estater, I’m more privileged than the cord-cutting hoi polloi. Aereo’s PR folks had previously provided me a username and password to test it out. The service provides live feeds of 27 New York-area broadcast channels and the ability to record up to 40 hours of programming, which you can watch on an Apple iPhone 4 or 4S, iPad or Apple TV box (see ‘Aereo’ To Test Copyright Law With Internet-Streaming TV Service).

Now, here’s an interesting wrinkle, which will probably play out in the broadcasters’ lawsuits charging the Barry Diller-backed startup with copyright infringement (see Broadcasters File Suits Against Aereo, Aereo Answers Broadcasters’ Lawsuit and The Aereo Paradox).

When I tried to access the service with an iPhone from my house in northern New Jersey, the Aereo service told me that — according to my IP address — I didn’t appear to be in-market. The geolocation check is for legal reasons: Aereo claims it’s simply providing access to over-the-air signals that you could receive with your own antenna. (The startup also says it requires a billing address located in the New York DMA.)

But here’s the deal: Aereo lets you insist that you are in your home market — even if you’re actually hundreds of miles away. Since I can get OTA signals of the New York stations at home (most of them, anyway), I checked the box confirming that. But I could have been in Denver.

According to Aereo CEO Chet Kanojia, the purpose of the override option is that, for example, subscribers may be using a corporate network that terminates in California even if they’re sitting at their desks in New York. “We expect the consumer to honor the idea it’s a home-market product,” he said at the startup’s press conference on Valentine’s Day last month.

Well, you can expect this “honor system” feature to come up if the broadcasters’ lawsuits go to trial.

In their initial complaints, the networks argued that Aereo is illegal on its face — asserting that “no amount of technological gimmickry by Aereo” changes the fact that anyone who wants to retransmit their signals must get permission. But the fact that Aereo has designed a simple way to skirt around the DMA restriction into the service seems to undermine its position that it’s basically just renting out rabbit ears.


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