Aereo Loses in Supreme Court, Big Win For Aereo

11:11 26 June in Musings, Rants and Raves

Yesterday the Supreme Court ruled in favor of the major American TV broadcasters claiming that Aereo’s service violates copyright laws. If you have not been tracking this story you can read a great summary of the years of legal battle and debates HERE.

Aereo’s loss in the Supreme Court is bound to cause a wave of outcry within the tech industry and shouts of joy from the big media executives. However, as both a content creator and supporter of independent artists I think this ruling is one of the most liberating and inspiring events to unfold within contemporary media: now forced to pivot, this loss poises Aereo to become a platform for young, innovative, independent artists.

Broadcasters Just Dug Their Own Graves

It is a fairly common belief that the big media corporations are trying to kill innovation and competition. This debate, commonly framed as a David vs Goliath story circled around indie content and big media has lately been framed around the death of net neutrality, or the potential monopolization of content as a result of the Comcast – Time Warner merger. However, debate is largely a matter of opinion and presenting rhetoric. As the saying goes, action speaks louder than words: with the Aereo decision the American broadcasters just publicly slaughtered an imposing threat at all costs, along with the $100M in financing available to Aereo, and the few hundred people’s livelihoods Aereo is responsible for.

In short, we have confirmation from the broadcasters themselves that they’re a bunch of grumpy old jerks that like the status quo. So now is the perfect time for Aereo to start singing “I Fought The Law (And The Law Won)” and rile up their young, Millennial users to start cutting the cord at an even more rapid pace than they already are. The best way to do this is to hit them with badass, awesome content that they won’t find on broadcast TV.


Supporting the Artist, Not the Corporation

I work with a lot of young artists (early to mid 20s) and I’m talking to and reaching out to a lot more. There are two main reasons for this: 1) I think they make the coolest stuff, and 2) Millennials like what Millennials make. The popularity of shows from Girls to Regular Show are largely due to audience members finding relatable characters that make them think “OMG, they are just like me.” That’s because the creators are just like them (in age and maturity at least).

Content historically has been a form of escapism to see things you never could. But as content has become more universally distributed — escalating from a few hundred movie theaters to a few million televisions to now a few billion of mobile devices — escapism is no longer the main reason why people watch stuff. It may be the reason why people go and see The Avengers or Gravity, but it certainly isn’t why they use Instagram, Vyne, or Facebook. It’s because the latter allows for better participation in the content consumption experience and makes people feel good about evangelizing young artists. It makes them feel like they’re part of the artist and his or her experiences.

In 2012 I heard Dan Ariely, writer of The (Honest) Truth About Dishonesty, speak and he demonstrated this point cogently while addressing content piracy. Within the audience nearly everyone freely admitted to pirating in their lifetimes. When asked what they typically pirated multiple audience members responded that they felt compelled to pirate corporate content, but were inclined to pay for indie content in equal measure. Piracy, Ariely then claimed, was largely due to the layers between the artist and the consumer. This was his reasoning for why Louis CK has been so successful in preventing piracy of the work he sells directly to fans; faced with the option to directly buy or steal from an artist that they loved, audiences overwhelmingly choose the former. The psychology of a young consumer changes when they have AMC-Loews and 20th Century Fox standing in front of their favorite artist making them more likely to pirate. This is the why big studio movies are annually the most pirated movies in spite of their wide availability; because no one thinks their dollars are going to the artist anyway.


Don’t Give Cord Cutters “Cord Content”

So it’s no wonder that 7.6 million Americans have cut the cord and that the average consumer spends 43% of their day viewing content online compared to 38% viewing TV. They want more indie, less corporate stuff. Certainly part of it is because there isn’t anything you can’t find on the Internet for free or low cost that’s on TV but an almost, if not, equal part is because young consumers like what smaller, less corporate brands and artists give them directly.

So in walks Aereo offering a cheaper content alternative. They’re a startup, they’re hip, and they’re all about cutting some corporate fluff out of your diet. Consumers still pay for this corporate content vs pirating it but that’s OK because it’s going to Aereo. But now Aereo is not allowed to stream any of the broadcasters’ content. That’s not a problem if you ask me, that’s an opportunity.

Millennials don’t want to have cable and prefer to watch online content. Aereo has technology to stream and record content across multiple devices, an active user base of young cord cutters nearly 1M strong, and no content. The solution? Allow users to stream and record the online content they’re watching  across multiple devices. If I were Aereo I would immediately call up someone like and ask for a partnership. I would start calling up Instagram celebrities and ask them to make original content for me. I would give the Millennials cord cutters reasons to never watch a Fox TV show again by beating them in market share instead of in court. If, in theory, the average Aereo user wants to evangelize artists and fight “The Man” then don’t give them Modern Family, give them High Maintenance.


Liberating Content Creators

It is going to be a big problem for the big media corporations when Millennials finally wise up and come of age and power. As their distrust for the corporation grows so will their distrust in working with and selling content to these corporations. Fox being a jerk to Aereo will correlate to Fox Searchlight being a jerk to me and my art in these young artists’ minds. This will lead to a higher percentage of artists selling direct-to-fan but it also creates an opening for newer, friendlier, and cooler companies to step in as a destination for young budding artists.

That is exactly what’s happening in indie film right now with upstart distributor A24. They have a very brief history and small catalogue compared to the dozens of incumbents. But they are on the tip of every filmmaker’s tongue I’ve been talking to. They bleed cool — an intangible that eclipses track record and case studies — although their early reputation stands as being filmmaker and investor friendly. Suddenly more established distributors are starting to imitate A24 rather than dismiss them as “too new to know what they’re doing.” They’re hiring the same PR teams, they’re following their distribution models, and positioning their brands in efforts to capture the young audience A24 has been quickly cornering.

All Aereo needs to do to replace the content they just lost is tell young artists they will showcase whatever they hell they want to make and make it easier for this content to be distributed and seen. Young artists should vie to be on the service that took the broadcasters to the Supreme Court and wants to disrupt the system. Aereo should become the place to see the coolest online content, hear the newest voices, and record all of this to be viewed later on multiple devices. Even if it’s not Aereo to do this someone has to because young artists aren’t going to want to make stuff for big corporations anymore. And that is the most liberating and independent principle artists can operate on: the principle that I don’t need to make stuff for anyone other than me and my audience.


Steal Their Audience, Not Their Content

Licensing your content for TV and Cable VOD has become a logistical and political nightmare. So much so that if you don’t do things how the broadcasters and cable providers want you to they’ll kick your ass in the Supreme Court. If Aereo told me they could get me onto 1 million consumers’ TV, computers, and mobile devices I’d take the deal. Especially right now when they have a content shortage and users who are probably wondering about what they’re going to watch and record on Aereo now. There is less content clutter and less hoops to jump through to get onto the platform. Even though 1 million households is just a fraction of what Comcast could get me into I am highly against helping to finance court cases against companies like Aereo.

It is now a legal precedent that Aereo is a band of thieves. The best thing to do is own up to it and keep stealing. Only they should focus on stealing users from the broadcasters rather than their content. In the long run companies like Aereo can and will prevail. Aereo may not be the company that will cause massive market share to leave the broadcasters but someone will be. And the way to do this is by democratizing content, allowing companies other than the big media corporations to showcase content in innovative ways. So Aereo: dust yourself off, tell the broadcasters good riddance, and give me a ring if you want your own original series.


  • carmella cardina

    Great piece. As a content creator, the more avenues there are for showing my work, the better. Fox has never looked at anything I’ve created.

  • Michelle PookahPookah Soffen

    The interesting thing to me is that “direct to fan” pretty much always involves a middle man – if it’s not a big corporation cable company or established distributor, it’s a video hosting/player solution with a paywall service or an e-commerce platform — so instead of trying to cut out the middle men, we should be trying to support the best ones, who treat content creators as partners, be it A24, Aereo, or whoever!

  • Joe LeVine

    great stuff, again

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James founded Dogfish in 2009 to produce and invest in independent film (in which he made 6 films). He was named by Deadline Hollywood as one of 2012′s 10 Producers to Keep Watching. In 2013 he launched the Dogfish Accelerator program after an inspiring experience working for TechStars in Boulder, Colorado. He’s a Northwestern University graduate and received his MBA from NYU Stern in 2013. He currently is an Adjunct Professor at NYU Tisch School of the Arts where he teaches Strategies For Independent Producing. James aspires to be one of the world’s most renowned hermits. He tends to spend most of his free time in South Williamsburg watching cartoons and googling “best Texas BBQ in NYC.” He also runs a monthly meetup called A Presentation of the Deplorable, Bizarre, and Terrible in which he binge watches 10 films in a row that most of the world has never seen (most of the time for glaringly obvious reasons). As of July 2014 only 3 people have attended.