United States: Supreme Court Rules That Aereo’s TV Transmissions Infringe Copyrights As An Illegal Public Performance

In a 6-3 decision earlier today, the United States Supreme Court held that Aereo infringes broadcasters' copyrights by providing the means for subscribers to view programs through individually-assigned antennas at about the same time they are broadcast over the air. Reversing the Second Circuit, the Supreme Court in American Broadcasting Cos., Inc. v. Aereo, Inc. held that, despite technological differences, the Aereo service performs the same function as cable systems, whose operations were expressly deemed to be "public performances" under Section 106 of the Copyright Act. The court's opinion describes itself as applying "narrowly" to technologies that mimic the function of cable TV systems and is therefore not intended as a broad pronouncement on all forms of transmission of stored content. Indeed, while the decision holds illegal the primary Aereo service, it does not reach the question of whether Aereo infringes by offering a means to record broadcasts for viewing at a later time.

The opinion builds its analysis around the historic treatment of retransmission of copyrighted works by cable TV systems. U.S. copyright law has always given copyright owners the exclusive right of "public performance" of their works. Supreme Court decisions in 1968 and 1974, decided under the old Copyright Act of 1909, held that cable systems (then called "CATV companies") were merely capturing signals and passing them along to ultimate users and were therefore not engaged in "public performance" of the broadcasters' works. In response, the 1976 Copyright Act added new language providing that an entity performs publicly when it "transmits" a performance to the public. The effect was to make clear that cable systems violated the "public performance" right unless they were licensed by copyright owners to transmit their works. Section 111 of the 1976 Act set forth a complex system for compulsory licensing of copyrighted works to cable operators.

Aereo claimed that it was not engaged in public performance because it provided to each subscriber its own unique antenna which would then transmit to the subscriber's own mobile device, solely at the direction of the subscriber. This, said Aereo, was a private performance, and not a transmission of the content "to the public."

The Court disagreed. It found that Aereo's activities are "substantially similar to those of the CATV companies that Congress amended the Act to reach." In providing the service, "Aereo uses its own equipment, housed in a centralized warehouse, outside of its users' homes." The fact that the Aereo system remains "inert" until the subscriber activates it is not a meaningful difference from what happens when subscribers watch cable TV, said the Court; in that case, too, the subscribers select what they want to watch and when. The technological differences between the systems are "invisible" to both the subscriber and the broadcaster.

In his dissent, Justice Scalia (joined by Justices Alito and Thomas) criticized this analysis as being an imprecise "looks like cable TV" standard. In his view, Aereo does not "perform" the programs at all since it does not engage in any "volitional conduct." It makes no choice of content; it simply provides a system that "lies dormant until a subscriber activates it." Justice Scalia wrote that finding "guilt by resemblance" would lead to an uncertain future of case-by-case determination of whether other, similar technologies violate the public performance right.

In effect, the majority agreed that it was using a "looks like cable TV" standard by stressing that it was making a "limited holding" applicable only to systems which, like Aereo's, imitated the function of a traditional cable system. It reiterated that the concept of public performance "does not extend to those who act as owners or possessors of the relevant product," and stated that the majority was not ruling on whether there is infringement "when the user of the service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content."

Justice Scalia wrote that he shared the majority's "evident feeling" that what Aereo was doing "ought not to be allowed," but said that "we need not distort the Copyright Act to forbid it." He suggested that Aereo might face liability under other theories such as infringement of the reproduction right (by making copies of the programs) or secondary liability (by providing the means for users to directly infringe). But on the issue of public performance, he wrote that Aereo had done nothing more than find a loophole in the law. "It is not the role of this Court to identify and plug loopholes," he wrote. "It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes."

Prior to the decision, many were concerned that a broad ruling in favor of the broadcasters would impair the growth of new technologies for storage and distribution of copyrighted content. While content owners will certainly be encouraged by this decision, it does not appear give them much ammunition against technologies that do not replicate the function of providing real-time access to broadcast content. For example, the decision may not affect the Second Circuit's decision in Cartoon Network LP v. CSC Holdings, 536 F.3d 121 (2d Cir. 2008), which authorized Cablevision's use of recording devices located at its own facility but controlled entirely by users to allow them to time-shift programming. Aereo and the Second Circuit had relied heavily on this case in arguing that its real-time transmissions were equally protected. The Supreme Court rejected the analogy, but did not attack the Second Circuit decision as it applied to the facts in that case.

The decision is viewed as a victory for broadcasters and content owners, as it will preserve the current revenue models under which broadcasters earn significant revenues from cable systems' payment of retransmission fees. But, the Court stopped well short of providing a broad reading of "public performance" that creates any direct or obvious threat to other types of digital content delivery systems.

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
 
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.