|Not these Supremes
I wish that I could claim that I had great insight into Aereo's legal battles, but it appears that the reason my lucky pronouncement proved accurate was an unusual decision made by Aereo.
Typically in such cases with new technologies winding their ways through the court system, the defendant, provided is allowed to offer the service, wants the case to make it to the Supreme Court as late as possible. The theory is that once there are lots of users of the product, shutting down the new service becomes a political issue. (Do you want to take away someone's Betamax?)
|Sony's Betamax, the Aereo of its day, as noted by the Los Angeles Times
|United States Supreme Court, as rendered in architecture
It appears that Aereo faced the following choice:
Allow time to pass. Sign up more subscribers. Possibly win at lower courts. Certainly take the risk that Film On X will be involved in other cases that may hurt Aereo's ultimate position, an argument well articulated by my former colleague Howard Homonoff.
Save the time and legal fees and try the case now.
One business factor that may have led Aereo to make the choice to get to the Supreme Court as soon as possible is the fact that it very well may not have that many customers. Whether Aereo has 1,000 or 10,000 or 100,000 customers may not matter in terms of the political dimension of a court decision. It seems pretty clear that whatever the size of Aereo's customer base, it isn't in the millions. Meanwhile, as a cash-burning tech startup -- it has spent at least $65 million -- the shorter the cash-burning portion, the better for the investors. If Aereo loses its case, the investors have found out a few years and many millions of dollars sooner -- perhaps the company can employ its technology in some other, legal way to find a business with returns to its investors. If Aereo wins its case, one risk in the business would be eliminated and it would likely be able to raise its additional funds on much more favorable terms than it has achieved to date.
Another take, which has a nice discussion of the cloud computing issues at stake in the case (The Vertere Group)