Supreme Court finds Aereo's Emerging Online Streaming Technology Hits Copyright Infringement Bullseye

The U.S. Supreme Court ruled that Aereo infringes over-the-air broadcasters' copyrights through Aereo's unauthorized rebroadcast of the broadcasters' content, rejecting Aereo's argument that its ingenious technology is in full compliance with the U.S. Copyright laws (ABC et al. v. Aereo). Aereo's technology includes individual, dime-size antennae, one for each subscriber to its service, from which Aereo streams over-the-air broadcast television programs to its subscribers. The U.S. Supreme Court determined that Aereo's streaming content (i.e. transmission) is a "public performance" in violation of the broadcasters' exclusive rights. 


Aereo had contented that (1) it does not control what programs are transmitted so "Aereo", itself does not "perform" anything.  Further, Aereo had contented that its transmission was not a "public performance" since a single individual receives a single transmission of content, and thus, each transmission is "private" and not public.  Aereo had analogized its service to a modern version of an old school rabbit ears antenna connected to a television, but instead of rabbit ears, it uses a single dime size antenna and instead of
copper wires, it uses the Internet.

The broadcasters contend that Aereo's service is no different than cable service providers and therefore, should be governed by the same rules that applies to them, namely, Aereo must pay licensing fees to re-broadcast the content or be subject to copyright infringement. 

The Supreme Court agreed with the broadcasters and disagreed with Aereo's two contentions.  Looking at the intent, purpose and history of the U.S. Copyright Act, and § 111, in particular, (provisions for compulsory licensing of community antenna television (CATV)), the Court found that "an entity that engages in actives like Aereo's performs."  The Court also found that the performance was public, by not recognizing a difference between (a) multiple, single transmissions to respective individuals and (b) a single transmission to multiple individuals.
 
For a more in-depth analysis of the Aereo decision, please see the article entitled, "Slings and Aereos of Outrageous Fortune: Supreme Court Rules that Aereo Infringes by Alexandra MacKay and Mari-Elise Taube, of Stites & Harbison, PLLC, as well as future posts here, at OP-IP.

© Stephen J. Weyer 2014

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