“Innovation” is one of the Internet’s favorite words (along with “disruption”).1  It’s a glittery word — who can be against innovation! — and seems to be used to express just about any concept that is needed. The word was once a pejorative; “A spirit of innovation is generally the result of a selfish temper, and confined views,” wrote Edmund Burke. Its normative meaning has since flipped.2

On April 1st, the Second Circuit affirmed the denial of an injunction against Aereo. The company had been sued by several television broadcasters alleging copyright infringement for retransmitting programs without permission. Last year, a district court refused to grant a preliminary injunction after finding that the broadcasters had been unable to distinguish Aereo’s system from a system held not infringing in the earlier Second Circuit decision in Cartoon Network v. CSC Holdings (“Cablevision“). On appeal, the Second Circuit agreed with the lower court, holding “Plaintiffs have provided us with no adequate basis to distinguish Cablevision from the Aereo system.”

Technology advocates celebrated the decision. The Disruptive Competition Project wrote that it considers Aereo a perfect example of the type of “disruptive innovation” it champions. Consumer Electronics Association CEO Gary Shapiro called the decision a “big victory for innovation.” Public Knowledge hailed the decision as a victory for “video innovation.” The EFF proclaimed the court decision as a Victory for Aereo, TV Watchers, and Innovation Without Permission ((One might find it telling how consistently internet focused civil society groups are aligned with the consumer electronics industry.)) Even Aereo itself has proudly proclaimed that it is on the side of innovation, progress, and consumer choice.

But how innovative is Aereo? From a viewer’s perspective, the system is largely indistinguishable from cable TV, which has been around for decades. Pay a monthly fee, watch television.

At least one of the Second Circuit judges didn’t see anything particularly innovative about the company. In a dissenting opinion, Judge Chin called Aereo’s “technology platform” a “sham”, describing it as “a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.”

Aereo is doing precisely what cable companies, satellite television companies, and authorized Internet streaming companies do — they capture over-the-air broadcasts and retransmit them to customers — except that those entities are doing it legally, pursuant to statutory or negotiated licenses, for a fee. By accepting Aereo’s argument that it may do so without authorization and without paying a fee, the majority elevates form over substance. Its decision, in my view, conflicts with the text of the Copyright Act, its legislative history, and our case law.

The decision also seems to conflict with the idea, as expressed above, that Aereo is innovative.

To put it another way: imagine the reaction to Aereo if it was in all respects identical — e.g., same channel lineup, same price — except it was licensed to retransmit programming. Would we still be hearing about how innovative the service is? I don’t think it would be too far off to imagine such a service being greeted by yawns, or even derided as outdated. That is, it seems plausible that the primary feature that makes Aereo lauded as an innovation is the fact that it is unlicensed.

It is heartening to see that others besides Judge Chin recognize this. In When copyright leads to wasted innovation, Alex Hern observes, “All of this innovation – the tiny antennas, better transcoding technology, and office placed with line-of-sight to the Empire State Building for perfect reception – isn’t being focused towards making life better for customers, or even just making money for Aereo. Instead, it’s just being used to get around the law.” I disagree with Hern, however, when he concludes that “The government could render all that effort useless overnight by just allowing Aereo to stream signal from one aerial to all its users at once.” Aereo is allowed to do this under current law, it just doesn’t want to bother seeking the necessary permission from the owners of the programs it wants to retransmit or pay the necessary licenses.

So how is it that so many celebrate this type of free-riding as innovation?

Part of the blame may be the vague definition of “innovation” itself by those who employ it the most. Author Evgeny Morozov recently wrote of this phenomenon

While the brightest minds of Silicon Valley are “disrupting” whatever industry is too crippled to fend off their advances, something odd is happening to our language. Old, trusted words no longer mean what they used to mean; often, they don’t mean anything at all. Our language, much like everything these days, has been hacked. Fuzzy, contentious, and complex ideas have been stripped of their subversive connotations and replaced by cleaner, shinier, and emptier alternatives; long-running debates about politics, rights, and freedoms have been recast in the seemingly natural language of economics, innovation, and efficiency. Complexity, as it turns out, is not particularly viral.

Part may also be the embrace of “permissionless innovation” as a norm. The idea was once defined rather narrowly, referring to the fact that one could deploy an online service or website without needing any sort of prior approval by any central governing body.3 Since then it has been expanded to include an absence any sort of obstacles to Innovation, both online and off.

An unqualified endorsement of such a broad definition of permissionless innovation is troublesome, not least of which because it contradicts the centrality of consent and rule of law in any free society. But to the concept’s proponents, permission is simply an obstacle to Innovation that must be torn down. “Permission” can be required by governments in the form of regulations and laws. These are often described solely as rent-seeking by incumbent firms, holding no legitimate purpose on their own and existing only to keep “disruptive innovators” out of the market.4 But permission can also be required from other individuals. Copyright and other forms of intellectual property, held by individuals or other entities, are characterized as the quintessential obstacle to innovation. This is essentially the core thesis in Lawrence Lessig’s 2003 book, Free Culture: The Nature and Future of Creativity: copyright is a restriction that creates a “permission culture“, as opposed to a free one.

Is copyright a restriction that blocks innovation? I say no. As Ronald Cass and Keith Hylton note in their new book, Laws of Creation: Property Rights in the World of Ideas this view is premised on the erroneous “zero sum” view of intellectual property that has become engrained in copyright skeptic thinking.

[T]he modern academic view treats intellectual property law as a set of rules determined in a zero-sum conflict between rights-holders and members of the public. Beyond some modest realm, for one side to gain, the other side must lose. The individual is encouraged y this view to choose a side: either you are with the public or with the rights-holders. For some writers, the choice is put in even more loaded terms: either you side with those who are rooted in the past or line up with the vanguard of the future, freed of entangling rights.5

But copyright is not a zero sum game. Cass and Hylton explain that IP protection, including copyright, comes with static costs, but it produces dynamic benefits. IP protection benefits society when those dynamic benefits are greater than the static costs, leading Cass and Hylton to conclude that, while not perfect, “existing legal rules are generally defensible within an analysis of their costs and benefits.”6

George Mason law professor Adam Mossoff has recently provided a real world example of this equation in action. In his latest article, How Copyright Drives Innovation in Scholarly Publishing, Mossoff looks at an area that has been especially fertile to charges of copyright as an obstacle. In his abstract, Mossoff writes

Today, copyright policy is framed solely in terms of a trade off between the benefits of incentivizing authors to create new works and the losses from restricting access to those works. This is a mistake that has distorted the policy and legal debates concerning the fundamental role of copyright within scholarly publishing, as the incentive-to-create conventional wisdom asserts that copyright is unnecessary for researchers who are motivated for non-pecuniary reasons. As a result, commentators and legal decision-makers dismiss the substantial investments and productive labors of scholarly publishers as irrelevant to copyright policy. Furthermore, widespread misinformation about the allegedly “zero cost” of digital publication exacerbates this policy distortion.

This paper fills a gap in the literature by providing the more complete policy, legal and economic context for evaluating scholarly publishing. It details for the first time the $100s millions in ex ante investments in infrastructure, skilled labor, and other resources required to create, publish, distribute and maintain scholarly articles on the Internet and in other digital formats. Based on interviews with representatives from scholarly publishers, it reveals publishers’ extensive and innovative development of digital distribution mechanisms since the advent of the World Wide Web in 1993. Even more important, this paper explains how these investments in private-ordering mechanisms reflect fundamental copyright policy, as copyright secures to both authors and publishers the fruits of their productive labors. In sum, copyright spurs both authors to invest in new works and publishers to invest in innovative, private-ordering mechanisms. Both of these fundamental copyright policies are as important today in our fast-changing digital world as they were in yesteryear’s world in which publishers distributed scholarly articles in dead-tree format.

True innovation grows the entire pie. The type of false innovation of services like Aereo simply shift the pieces around — and, if such a service negatively affects those providing the television programs that Aereo relies on to attract subscribers, then, in the long run, nobody wins.


  1. Its overuse by some borders on unintentional parody; for example, this recent article on Techdirt features an amazing four instances of some form of “disrupt” and three instances of some form of “innovate” in the first paragraph alone. []
  2. A 2009 literature review found that only 1 in 1,000 social science articles discussing innovation studied the undesirable consequences of innovation, suggesting a strong pro-innovation bias in recent decades. []
  3. See, for example, Vint Cerf in 2009: “Many now-successful companies have deployed their services on the Internet without the need to negotiate special arrangements with Internet Service Providers, and it’s crucial that future innovators have the same opportunity. We are advocates for “permissionless innovation” that does not impede entrepreneurial enterprise.” []
  4. Larry Downes, for example, said in a recent article, Ready to Innovate? Get a Lawyer, “But more often the imposition of legal constraints comes indirectly, the maneuverings of incumbents caught off-guard by something dramatically better and often cheaper than their core products and services. Performing a bit of regulatory judo, they often respond to such threats by pressuring regulators who oversee their own activities to declare the innovator illegal or otherwise in violation of rules that were never designed to cover it.” []
  5. Pp. 209-10. []
  6. Pg. 220. []


  1. Devlin Hartline

    That is, it seems plausible that the primary feature that makes Aereo lauded as an innovation is the fact that it is unlicensed.

    I think you nailed it. I recall back in 2011 when Zediva got shut down, certain tech bloggers decried the demise of so “innovative” a service. All Zediva did was connect DVD players to the internet. The “innovation” was probably that they had no licenses. If Zediva actually had the licenses, I’m sure they would have been mocked by the same bloggers for their silly design.

    • So that’s what they were called!

      I was just musing about that case and wondering how it panned out, ‘coz I couldn’t remember for the life of me. I know now.

      It’s interesting to note that, thus far, little antennas trump little dvd players. Possibly because they’re smaller.

  2. “But copyright is not a zero sum game.”

    It is a “zero sum game” if one engages in tunnel vision limited solely to the unremarkable fact that the law grant one a “right” and another the obligation to respect that “right”.

    This misses the broader point, though. Within this environment a “work” has been created, and that “work” is now within the public sphere.

    Anent “innovation”, I see it increasingly being used as a linguistic sleight of hand. It is one thing to create a new platform. It is quite another to improperly populate the “inventory” of the new platform with the work product of others. It should be apparent that I am not a fan of those who borrow Mr. Jefferson’s “tapir” comment as justification for so many problematic “innovations”.

    • Devlin Hartline

      It is one thing to create a new platform. It is quite another to improperly populate the “inventory” of the new platform with the work product of others.

      Great point. They also downplay the necessity of copyright in creating new works but then populate their services with works that would not have been created but for copyright. Aereo and the like aren’t supplying homemade, amateur videos.

      The other buzzword I’m seeing lately is “collateral damage.” If “innovation” means “no licenses,” then I think “collateral damage” means “getting caught.”

      • Having practiced, inter alia, patent and copyright law for 34+ years, I have come to learn the symmetry associated with these two bodies of law. Experience informs me that situations such as Aereo truly depend upon an analysis of not only the “content” moving from Point A to Point B (and C, D, E, etc.), but also the technical details associated with the means by which such movement is facilitated. Obviously, copyright law relates to the former. While patent law may not necessarily relate to the latter, it does have the distinct benefit of requiring one to examine in great detail what such means comprise and how they operate.

        Considering Aereo specifically, a major failing of the decision is the complete lack of any detailed analysis of the “means”. “Innovation” has no meaning with respect to such an analysis. The very same can be said of “technology”. Thus, courts bandying the terms “innovation” and “technology” about quite clearly fail to realize they are engaged in nothing more than the use of nice sounding, but totally irrelevant, buzz words.

        As best I can determine with the limited technical information at hand, the Aereo system comprises an RF-receiving unit populated with a myriad of chip level RF antennas. Somehow each of these antennas are integrated via hardware and software with the internet, and it is by virtue of this integration that the content at issue can be “moved” to each content-receiving location. Of course, a “system” is not an “innovation”, nor is a “system” a “technology”.

        With a firm grasp of what Aereo’s system comprises, it then becomes a relatively easy task to break it down in such a way that one is able to ascertain how, when and where the rights conferred by copyright law come into play. For example, quite clearly the Aereo system is free and clear of copyright issues at its RF-receiving stage of the over-the-air broadcast signal(s). After all, there is nothing within copyright law that prevents one receiving broadcast signals from doing so via the use of a plurality of antennas. It is, however, not at all clear the circumstances under which the output of each antenna can be communicated to display devices (TVs, computer displays, mobile devices, etc.) without implicating the exclusive rights conferred by copyright law.

        I am offering no opinion concerning the Aereo decision by the trial and appellate courts. What I am offering is the total lack of any meaningful explanation of how Aereo’s system actually works, and expressing my opinion that without such an explanation it is well nigh impossible to perform an informed analysis of the underlying issues.

  3. I’ve been saying something similar for months.

    People are calling this “innovation” and referring to the judges as being “savvy” for seeing the merits in it. I think the exact opposite.

    The Cablevision remote DVR decision examined programs that were already being delivered to the home but were taking advantage of off site storage. The dvr capability is completely agnostic to what it is actually storing and the only benefit to the user is increased storage capacity.

    Aereo is grabbing signals outside of the home at point A and is re-transmitting them over the net to point B. The fact that the judges see similarity between these two paradigms is flabbergasting.

    Aside from that, this isn’t innovation. In fact, I’d bet that no bothered to do this simply because no one dared think this was legal.

  4. How many people expect tech companies to give up their patents to foster a “permissionless” culture?

    In a permissionless culture anyone could take anything at any time for any reason from anyone else. Even toddlers know that doesn’t work.