I’m reasonably certain that 90%+ of my audience — that would be you — have no idea what Aereo is. And until recently, there was no real reason to know, unless you lived in the NYC area and just looooved over-the-air TV.

But last Friday, the US Supreme Court chose to hear a case involving this odd little startup, ABC, Inc. vs. Aereo, Inc., and that could have immense implications for intellectual property law. I think there could be direct relevance to real estate given the industry’s recent and ongoing fights over who owns what and how. Nothing may come of it, but Supreme Court cases rarely result in nothing, so those of you in this arena might want to check out Aereo, what’s going on, and get your lawyers involved.

FYI, I haven’t followed the case that carefully, so I’d love to hear from the legal eagles in our business (Brian? Mitch?)

Aereo, In Brief

For those not inclined to read through legal paperwork, and frankly, who could blame you, the issue in brief:

The TV/media industry is obviously watching this one closely. If Aereo wins, quite a few broadcast industry people think that’s the end of TV as we know it.

There is no dispute that the content is copyrighted. The dispute is whether aggregating that content and making it available to an individual user is a “public performance” or a “private performance”. So far, the lower courts have tended to side with Aereo, with the startup winning a big decision in appellate court, that led to the Supreme Court taking the case.

Parallels to Real Estate

There are some obvious parallels to real estate here. In the NeighborCity lawsuits, the essential fight appears to be around Feist, which I’ve discussed before. Court rulings to date are along the lines of, “you can copy all of the facts, but not the photos and descriptions, which have a creative element to them”. There are also some claims about whether the MLS has correctly acquired the copyrights, and claims of conspiracy and so on, but those aren’t core to the issue.

But most people realize that the bare facts about a listing aren’t what consumers want to see. What they really want to see are the photos (and possibly videos) of the house. There’s no question that those are copyrighted, protected intellectual property.

If Aereo should win, we will have to deal with what that means for listings data.

Aereo’s core service is to do for a consumer what he can do for himself: put up a TV antenna to watch TV programs.

There’s no question that a consumer can go to a brokerage website, access listings, see all of the photos, share them, save them, what-have-you. An individual consumer coming to your website is likely to be classified as “private communication”.

One could easily imagine some company — let’s say NeighborCity, since it’s involved right now in expensive litigation — taking the stance that all that it is doing is enabling individual “private communication” access to copyrighted content, just like Aereo is doing. If an individual has the right to go see listings and photos, then NeighborCity has the right to enable that individual to do so, even if that pisses off the copyright holders.

Suddenly, all of the current arguments about Feist, compilation copyright, licensing, etc. etc. all go out the window. If aggregation and retransmission of copyrighted content is “private communication”, then none of that matters.

Some Key Differences

There are, of course, some key differences.

The most obvious is that in the Aereo case, the TV signal is broadcast over the airwaves. With real estate listings, they’re placed online, on a website or two. In the Internet era, especially if Aereo wins, I’m not sure there’s a huge difference between broadcast and putting something on the Internet (e.g., YouTube is… what exactly?), but that is a key difference.

Perhaps the fact that websites have Terms of Use that govern each and every individual user who uses/accesses that website — TOU that do not exist in over-the-airwaves broadcast — would be sufficient to distinguish Aereo and some real estate version thereof. If the TOU of a real estate website prohibits the retransmission/sharing/whatever of copyrighted listings content (photos, descriptions) to an individual, maybe that means a company can’t simply do the Aereo thing for an individual.

Trouble with this, for me, is that I can’t imagine how such a TOU could be constructed without making that website completely useless to the consumer. I mean, if I can’t email a listing with its photos to my girlfriend to say, “Hey, what do you think about this one?”, why would I use that website? And if I can do that, then why couldn’t some company do it for me?

Another difference is that broadcast is not only governed by the government, but granted by it through spectrum auctions. There is a fairly heavy dose of public policy, since one could argue that having broadcast TV and radio is in the public interest for things like news, emergency broadcast, etc. etc. Real estate listings, on the other hand, are pure commercial speech — advertisements of homes for sale. We don’t have quite the same level of public interest in having real estate listings as we might in having local news. (At least, one could argue it.)

On the other hand of that public policy argument… real estate is a licensed industry, and one could argue that there is a strong public interest in ensuring that consumers have wide access to all available housing information, including what is for sale/lease in an area. Fair Housing Act, after all, is an expression of strong public interest in non-discrimination in housing.

Watch This Space

Maybe there are some other differences in the details here like the fact that cable TV is a “public performance” so real estate websites are more like cable TV. I can’t say without really spending serious time on the briefs and rulings.

Nonetheless, check out Aereo and the legal brouhaha surrounding it. We all should have an answer from the Supreme Court by the end of the year, since the cases will be argued in April, and rulings typically get handed down a few months after that.

Again, if you’re a lawyer in our space, I sure would love to get your take on this case and what it could mean for real estate.