Aereo’s Copyright Loss Leaves Much in the Clouds

Posted by on Jul 1, 2014

The Supreme Court recently held that Aereo, Inc., infringed on copyrights belonging to cable broadcasters, producers, distributors, and marketers with its online cable streaming service. See opinion here. As part of its service, Aereo provides each subscriber with their own antenna, which captures cable broadcasted airwaves. The system works similarly to a DVR, allowing a user to watch or record cable programming. The subscriber can access their personal antenna online, and view the programming moments after its original broadcast, or watch the recorded version later.

When deciding the case, the Court focused on the issues of whether Aereo “performed,” or transmitted, the copyrighted materials, and whether such performance was done “publicly,” under the Copyright Act of 1976.

Under the Act, to perform an audiovisual work means to “show its images in any sequence or to make the sounds accompanying it audible.” Aereo argued that it wasn’t performing at all, but merely supplying equipment for its customers to stream television programming. It concluded that it was ultimately its customers who were performing. However, the Court disagreed, finding that the legislative intent of the Act dictates that such activities by an entity like Aereo constitutes a performance.

The other question before the Court was whether Aereo’s performance was done publicly in accordance with the Transmit Clause. An entity performs a work publicly when it “transmit[s] . . . a performance . . . of the work . . . to the public.” Aereo’s argument against public performance was two-fold. First, that the only performance it transmits is the performance created by its act of transmitting.  Second, because each of its performances is capable of being received by only one subscriber, Aereo transmitted privately, not publicly. Aereo relied heavily on its contention that it merely supplies its subscribers with equipment, and does nothing more. Regardless of the fact that each subscriber is given their own antenna, the Court found that Aereo works no differently than any other cable provider, which do perform “publicly.”

Critics have been quick to attack the law on which the decision was based, opining that it’s antiquated, and not properly equipped to analyze the technological advances from the past 40-plus years. Although old, the divided Court ultimately relied on the legislature’s intent when amending the Act.  Nevertheless, such a decision provides added fervor for a substantial overhaul of the Copyright Act, like the overhaul to the U.S. Patent laws that will more fall in line with advancements in technology.

Until then, what does this mean for other cloud-type services like Aereo? In short, the Supreme Court said the world will have to wait and see until such an issue is brought to them. And for those who are still concerned about this case’s repercussions should petition Congress.  Such an invitation shouldn’t go unheeded.