Splitting hairs
I wonder what happens if I rent a DVR from the local Rent-A-Center? Are they then 're-transmitting' to me because they own the hardware?
Okay, I still physically control the hardware so there's a difference.
What about if I live in an apartment block and put that DVR into the basement, where the antenna signal comes in. I don't own or control the that location. Is the body corporate then liable?
Okay, there's still just the one DVR there so there's still a difference.
But what about if they allow all the tenants to do that? That's now a bunch of one-to-one transmissions, like Aereo.
Okay, we are still responsible for the hardware (even though we rent it) so still not the same.
But it's all getting a bit messy down there now so what if, as part of our rent, the body corporate agrees to rent a dozen identical DVRs and install a new, stronger antenna to run them. Each DVR is assigned to a single apartment and each tenant has exclusive control over that unit.
What, now, is the difference?
Yes, it's a deliberately farcical situation but the point is that when the scale and the remoteness of the operation are taken out of the equation, Aereo is essentially analogous to the setup proposed above.
At what point does such a setup step over the line to have (as Breyer, J wrote in the majority opinion) "an overwhelming likeness"? I.e., at what point in the progression from personal, in house device to cloud-service does a DVR become enough like a cable service to be excluded from consideration under the 'volitional-control' test?
The majority opinion makes particular note of a difference between a cable service and Aereo, which is that unless and until a user activates the service and chooses what to record/watch, the service is "inert". As Breyer, J. points out, both Aereo and the three dissenting justices believe this to be a "critical" difference as it not only speaks to the volition of the user (and not Aereo) but provides a clear distinction between the operation of a cable service and Aereo's service.
The 6 justices of the majority accepted that difference but were of the opinion that it does not constitute a "critical" difference.
The point is that, far from what some would have you believe, the law actually supports both cases nearly equally and it all hung on the interpretation of a few words ("perform", "public", "transmit", etc...) - all of which were laid down before the advent of the technology currently employed.