United States: Supreme Court Holds That Technical Differences Don’t Save Aereo From Infringement Liability

Last Updated: July 7 2014
Article by David A. Kluft

Television broadcasters and other digital content providers issued a collective sigh of relief on June 25, 2014 when the United States Supreme Court issued its much-awaited opinion in American Broadcasting Companies, Inc. v. Aereo, Inc. The Court reversed the Second Circuit and held that Aereo's television service, which allowed viewers to watch broadcast television programs over the internet, infringed the broadcasters' exclusive right to publicly perform their work.

For prospective customers of Aereo and similar services, this means that the ability to legally watch television over the internet is unlikely to be a reality any time soon, unless licenses are worked out with the copyright holders. As to its broader implications, the opinion was careful to limit its holding to the technology at issue, as opposed to cloud computing and other innovations. However, the Court's approach suggests a "substance over form" attitude to digital technology. In other words, it just got harder to engineer your way around the text of the Copyright Act.

The Public Performance Right

A copyright owner has the exclusive right "to perform the copyrighted work publicly." To perform a television program publicly means "to transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." This definition is called the "transmit clause," which was incorporated into Section 101 of the 1976 Copyright Act in order to prevent the unauthorized retransmission of broadcast television signals via analog coaxial cable.

In 2008, the Second Circuit confronted the transmit clause in the context of digital age technology in Cartoon Network LP, LLLP v. CSC Holdings (known as the "Cablevision" decision). In that case, the defendant cable company allowed its subscribers, via remote control, to direct the cable company's computer servers to record and store a program, and then to transmit that program to the subscriber's television at a later time. Even if 10,000 customers recorded the same show, each of them would be watching their own separate copy stored on the servers. The Second Circuit held that, because each copy was transmitted only to one person, the cable company was not "publicly" performing the work, and thus did not infringe on the public performance right.

Aereo's Technology

Aereo developed a technology specifically designed to fit within the Second Circuit's reasoning in Cablevision. Aereo charged its users for access to antenna boards, each containing thousands of dime-sized antennae, to receive local television broadcasts. Each individual antenna transmitted a signal only to one user at a time. Therefore, Aereo argued, its technology was no different than that pair of rabbit ears you used to put on your black and white television set. Aereo asserted that it was not infringing the broadcasters' copyrights - and shouldn't have to pay them - because it was not performing any program publicly, but rather facilitating thousands of individual private performances, just like in Cablevision. The Second Circuit agreed.

But predictably, the broadcasters didn't see it that way. They urged the Supreme Court to reverse the Second Circuit and instead adopt the approach taken by the Central District of California in Fox TV Stations v. BarryDriller Content Sys., in which a technology similar to Aereo's was held to create a "public performance" under the transmit clause. Whether or not Aereo's technical specifications include individual antennae, the argument goes, it is still commercially retransmitting someone else's work to thousands of consumers and, as Judge Denny Chin wrote in his Second Circuit dissent, such activity "is not in any sense private."

What the Supreme Court's Decision Means

In an opinion by Justice Breyer, the Supreme Court agreed with Judge Chin and held 6-3 that Aereo was engaged in "public performances" under the transmit clause. For the Court, the fact that each antenna transmitted to only one subscriber at a time was a mere "behind-the-scenes" technological issue that did not make a difference to Aereo's customers and did "not render Aereo's commercial objective any different" that that of the unauthorized coaxial cable transmissions that were the original target of the transmit clause.

Justice Scalia, joined by Justices Thomas and Alito, dissented. According to the dissent, the saving grace for Aereo should have been the fact that its users were the ones "calling all the shots," in that they controlled which programs their individual antennae were transmitting. Justice Scalia further argued that the majority opinion imposed on Aereo "guilt by resemblance," holding it liable for copyright infringement not so much because it violated the text of the Copyright Act, but because it resembled past technologies that were found to have done so.

What this means in the short term is that Aereo will have to change or stop the way it does business. It also means that other internet television transmissions similar to Aereo are likely to be held infringing unless authorized by the copyright holders. As to cloud computing and other technologies, Justice Breyer cautioned that the majority's interpretation of the transmit clause did not apply to anything not before the court. Nevertheless, the holding suggests that, going forward, a majority of the court will take a "substance over form" approach to new technologies accused of copyright infringement, looking more to the consumer realities and commercial incentives involved than to whether the specific architecture of the technology adheres to the text of the Copyright Act.

The opinion is available on the Supreme Court's website.

This summary was prepared with the assistance of Kelly A. Caiazzo, Law Clerk

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Harvey Siskind LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Harvey Siskind LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions