United States: Television Broadcasters Prevail In Dispute Over Disruptive Content Distribution Technology

On June 25, 2014, the Supreme Court issued an important decision for the television industry, ruling that storage and delivery service Aereo violates the Copyright Act when it captures over-the-air broadcasts and then retransmits unique copies to subscribers via individual, dime-sized antennas. Cognizant that the decision was closely watched and could impact developing technologies, the Court issued a narrow opinion stating that "we do not believe that our limited holding" will "discourage . . . the emergence or use of different kinds of technologies." ABC, Inc. et al. v. Aereo, Inc.  Slip op. at 16.

The case pitted upstart Aereo against broadcasters ABC, NBC, CBS, Fox, and others. In the proceedings below, the U.S. Court of Appeals for the Second Circuit denied the broadcasters' request for a preliminary injunction against Aereo, holding there was no public performance because the potential audience for each Aereo transmission was a single subscriber who requested that the program be recorded. The transmission, the lower court found, was therefore private. The Supreme Court reversed the Second Circuit, determining that Aereo was performing the broadcasts publicly within the meaning of the Copyright Act's Transmit Clause and without authorization of the copyright owners.

In ruling against Aereo, the Supreme Court first addressed whether Aereo was performing the broadcasts at all. Aereo argued there was no "performance" within the meaning of the statute because it only supplied equipment that responds to subscribers' requests and did not make any content selection itself. Justice Breyer, writing for the 6-3 majority, was not persuaded. Breyer began by noting that in 1968 the Court ruled in Fortnightly Corp. v. United Artists Television, Inc., that a community antenna television, or CATV (a precursor to cable), did not perform when it placed antennas on hills to carry broadcast signals to the homes of subscribers because it "neither edited the programs received nor originated any programs of its own." In that decision, the Court concluded that broadcasters perform, viewers do not. The Court determined CATV was more like a viewer than a broadcaster because its equipment simply enhanced a viewer's ability to receive a broadcaster's signal—similar to viewers using antennas in their own homes. In 1976, however, Congress amended the Copyright Act and in doing so expressly overturned the Fortnightly decision, bringing cable systems within the Act's scope. The new language erased the line between broadcaster and viewer with respect to performing, declaring that to "perform" an audiovisual work means "to show its images in any sequence or to make the sounds accompanying it audible." Under this language, Justice Breyer explained, both the broadcaster and viewer perform.

The Court then concluded that because Aereo's activities were similar to that of a cable system, Aereo "performs." Writing for the dissent, Justice Scalia argued there was no performance because Aereo's subscribers, not Aereo, selected the content that was performed. Scalia compared Aereo to "a copy shop that provides its patrons with a library card." Post at 5. Just like the copy shop is not directly liable whenever a patron uses the shop's machines to reproduce copyrighted materials, Aereo should not be directly liable when subscribers use its equipment to transmit copyrighted television programs. Justice Breyer rejected this analogy, stating that "the dissent's copy shop argument makes too much out of too little," slip op. at 10, and finding that "the sole technological difference between Aereo and traditional cable companies" is insufficient to overcome the 1976 amendments to the Copyright Act. Id.

The Court next addressed whether Aereo was performing the broadcasts publicly under the meaning of the Transmit Clause. This clause, enacted under the 1976 Copyright Act, states that an entity performs publicly when it "transmit[s] . . . a performance . . . to the public." 17 U.S.C. § 101. Aereo argued that because each subscriber received broadcast signals from an individual antenna, any performance was transmitted privately, not publicly. The Court viewed this distinction as irrelevant to the analysis, concluding that the behind-the-scenes technology did not alter the viewing experience for subscribers nor did it make Aereo's commercial objective any different than those of cable companies.

The Court further determined that the Transmit Clause suggests an entity such as Aereo may transmit a performance through multiple, discrete transmissions—not merely through a single communication. This was so, the Court reasoned, because the Clause provides that one may transmit a performance to the public "whether the members of the public capable of receiving the performance . . . receive it . . . at the same time or at different times." § 101. "Were the words 'to transmit . . . a performance' limited to a single act of communication, members of the public could not receive the performance communicated 'at different times.'" Slip op. at 14. Therefore, it makes no difference whether Aereo is making a series of single transmissions; Aereo is ultimately communicating the same images and sounds to multiple subscribers. And these subscribers constitute "the public" because they involve a large number of people unrelated and unknown to each other. These facts matter, the Court explained, because although the Copyright Act does not define "the public," it specifies that an entity performs publicly when it performs at "any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."

The Court's decision is considered a major victory for the broadcasters. Had the Supreme Court determined that Aereo's technology and business model did not violate the Copyright Act, as posited by the dissent, it would have cleared the way for other technologies that take advantage of over-the-air broadcasts without paying copyright royalties, undermining broadcasters' ability to generate revenue from those who seek to retransmit their programming.

In its decision, however, the Court emphasized that its ruling was limited to the technology presented by Aereo, and in particular its similarity to CATV systems, stating that "we cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us." Slip op. at 17. The Court expressly reserved any decision regarding other technologies and acknowledged that the Transmit Clause might not apply to other technologies in different contexts, particularly if, unlike here, the users of those other technologies are the "owners or possessors" of the underlying works.

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.

Events from this Firm
15 Nov 2017, Conference, California, United States

Finnegan is a Gold sponsor of the second annual Digital Media & IP Forum, hosted by World Congress.

15 Nov 2017, Conference, London, UK

Finnegan partner Leythem Wall will consider European claim drafting strategy and will lead the Chemical Workshop during a two-day course, hosted by Management Forum.

15 Nov 2017, Seminar, Amsterdam, Netherlands

Finnegan partner Anthony Tridico will lead Forum Institute for Management’s course comparing patent law in the United States and Europe.

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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.


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.


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.


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.


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.


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.


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.