TOO CLEVER BY HALF

The first duty of attorneys to their clients is honesty.  That sometimes entails telling clients something they would rather not hear.  But being too clever by half often causes more harm than good.  Perhaps Aero, a company whose case was among those decided by the Supreme Court last term, thinks so now.

Aero tried to avoid copyright law by way of a technological twist.  It operated thousands upon thousands of mini-antennas, each dedicated to a single subscriber at a time.  On the production side, it saved what it described as an “individual copy” of a TV show.  It would then broadcast that individual copy to that single subscriber who had ordered the show, mere seconds after broadcast by cable or on-air stations.  That resulted in its subscribers being able to stream the ordered show nearly live (by a matter of seconds) without paying for cable.

With warehouses full of antennas, Aero theoretically could serve a nearly limitless amount of subscribers.  But, because of its individual copy / individual order technology and model, Aero (who never paid a cent in copyrights) argued that it was not broadcasting to the public and that its actions were lawful.

Too clever by half.  The Supreme Court ruled that Aero was no different from cable, and that its novel technology did not immunize it from copyright laws.  Congress had in fact revised the Copyright Act some decades ago to make sure cable was covered, so Aero was covered.

Echoes from the Aero case may be heard far beyond the marble halls of the U.S. Supreme Court.  In law as in life, if something it too good to be true, it usually is, and the best attorneys are first and foremost the most honest ones.