United States: Quasi-Broadcasting And Copyright – End Of An Aereo?

Last Updated: July 15 2014
Article by Laura Phillips and Anthony D. Glosson

In a highly anticipated decision, the Supreme Court on June 25, 2014, issued an opinion that ruled that web-based TV streaming service Aereo violated copyright law by providing a service substantially similar to cable television without clearing copyrights to transmit the streamed program content. Aereo enabled its subscription viewers to watch or record over-the-air TV programming by renting antennas and digital storage spaces. Subscribers used online controls to operate their designated antenna within Aereo's facilities. The content they selected was transcoded to a digital signal and sent to their own dedicated space on Aereo's hard drives. From there, subscribers could stream the programming live or save it permanently onto Aereo's servers. Subscribers could access their live or recorded content from anywhere in the world via the Internet.

Aereo maintained that its television streaming service resembled other services that courts have determined to be non-infringing, and thus legal in a line of cases beginning with Sony Corp. of America v. Universal City Studios (Betamax). In that case, the Supreme Court reasoned that Sony had a right to sell Betamax video tape recorders because they had substantial non-infringing uses, including "time-shifting," or recording programming for one's personal viewing at a later time.

Similarly, in Cartoon Network v. CSC Holdings (Cablevision), the Second Circuit ruled that Cablevision's remote storage DVR systems were legal. The systems enabled consumers to record television shows to Cablevision's servers for their personal viewing at a later time. The court reasoned that "volitional conduct is an important element of direct liability." Cablevision, 536 F.3d 121, 131 (2d. Cir. 2008). It concluded that "by selling access to a system that automatically produces copies on command Cablevision more closely resembles a store proprietor who charges customers to use a photocopier on his premises, and it seems incorrect to say, without more, that such a proprietor "makes" any copies when his machines are actually operated by his customers." Cablevision, 536 F.3d at 132. Accordingly, the court held that Cablevision was not liable for infringing copies that the DVR system recorded on its servers.

Aereo apparently designed its technology in a manner aimed at avoiding volitional conduct. Specifically, Aereo allotted storage space to each subscriber on which to record whatever content they wanted. Moreover, Aereo allowed consumers to choose the channel to which they would tune their antenna, leaving consumers with the ability to record either copyrighted or uncopyrighted content. Aereo did little more than provide the equipment and underlying functionality to make each individual selection possible.

Aereo touted that its business model distinguished it from cable and satellite operators, who actively decide which programming will appear on their systems. Cable and satellite operators, as a result of their deliberate content selection, must compensate broadcasters for the right to carry their programming—and that compensation accounts for a substantial portion of broadcasting revenue. If cable and satellite operators switched to Aereo-like technology and stopped paying retransmission fees, broadcasters would lose a crucial income stream.

Broadcasters from around the country sued Aereo to stop its practices. The Second Circuit ruled in Aereo's favor, concluding that its services were legal because Aereo had not engaged in volitional conduct that infringed copyrights. Conversely, in a separate suit, the Tenth Circuit sided with the broadcasters by denying Aereo's request for a temporary stay of a lower court's order requiring it to shut down operations. The Tenth Circuit concluded that Aereo was not entitled to a temporary stay because it had not shown that it was likely to persuade the Supreme Court to rule in its favor.

The Supreme Court, on June 25, reversed the Second Circuit's decision, finding that Aereo's services infringed broadcasters' copyrights. The Court's analysis focused on interpreting the scope of a copyright owner's exclusive right under the Copyright Act "to perform the copyrighted work publicly." 17 U. S. C. §106(4). Justice Stephen Breyer, writing for the majority, conceptualized the issue in Aereo as a set of two questions: first, does Aereo "perform" the copyrighted works that its users stream via its service; and second, is the performance "public" within the meaning of the Act. Justice Breyer answered both of these questions in the affirmative.

First, the Court determined that Aereo "performed" the copyrighted works because the service Aereo offered was similar to the services that Congress sought to regulate with the Copyright Act of 1976. Specifically, the majority noted that Congress passed the Act in part to reverse two Supreme Court decisions, Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U. S. 394 (1974), and Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390 (1968). The Court in those cases held that cable providers did not violate copyright law by selecting and transmitting a variety of broadcasters' signals simultaneously to customers, who could then choose which signal entering their cable box they would like their TV to display. In Aereo, the Court acknowledged the technological differences between Aereo's user-directed tuning and storage technology on the one hand, and cable or satellite operator-curated systems on the other, but largely dismissed that distinction as irrelevant. Because Aereo served virtually the same function for consumers as cable does, the majority deemed Aereo's degree of control over the recording process to be of little importance.

Second, the Court determined that Aereo's performance of the work was a public one because, although viewers of the same work deriving from different source copies normally cannot be aggregated to constitute the "public," the distinction in this case was inconsequential. The Court stated that Aereo could have devised a more technologically efficient system in which all viewers watched copies deriving from the same antenna, but it did not do that solely because of the copyright implications. Because the technical difference is imperceptible and irrelevant to both viewers and broadcasters, the Court reasoned, it does not bear on the copyright liability determination. Consequently, the Court concluded that the fact that Aereo's service permitted access to copies of the same work for many unrelated individuals sufficed to demonstrate that Aereo performed the copyrighted works in public.

The majority emphasized the limited nature of the Court's ruling, likely in attempt to allay concerns that a ruling against Aereo would destabilize the cloud computing and video streaming developments that Cablevision had fostered by reducing service providers' apparent risk of liability for the content their consumers upload.

According to the majority, the same analysis may not apply to other technologies outside of the broadcast retransmission context. Because Congress had enacted the 1976 Copyright Act specifically to bring broadcast retransmission technology into the Act's purview, the Court concluded that broadcast retransmission technology occupied a special place in copyright law that justified applying a different standard than might otherwise inhere in cases implicating other consumer-operated forms of cloud technology. Although not binding on future decisions, the Court attempted to distinguish the cloud storage at issue in Cablevision from Aereo's model, stating that "[q]uestions involving cloud computing, [remote storage] DVRs, and other novel issues not before the Court . . . should await a case in which they are squarely presented." Slip op. at 17, (quoting Brief for United States as Amicus Curiae 34) (both alterations in original).

Justice Antonin Scalia wrote the dissent, and was joined by Justices Samuel Alito and Clarence Thomas. The dissent contended that the majority's approach introduced a "cable-lookalike" exception to the Cablevision and Betamax principle that merely providing equipment capable of infringing copyrights does not usually constitute infringement. Drawing from the Second Circuit's opinion in Cablevision, the dissent compared Aereo's service to that of a photocopy shop, arguing that neither service provider should be liable solely because its customers sometimes use its facilities to infringe copyrights. According to copyright professors Peter Menell and David Nimmer, however, that analogy "rings hollow, especially in view of Congress's clear intention to channel retransmission services into the detailed statutory regime."

The decision largely embodies the result that the U.S. Justice Department had urged the Court to reach: a narrow decision favoring the broadcasters, but without broader implications in the technology space. The Brief for United States as Amicus Curia had argued that Aereo was "blatantly violating" copyright law, but emphasized that its conclusion "should not call into question the legitimacy of businesses that use the Internet to provide new ways for consumers to store, hear, and view their own lawfully acquired copies of copyrighted works."

For broadcasters and other copyright holders, the ruling represents a significant victory in ensuring that technological advancement does not undermine robust copyright protections. For service providers, the Court left many questions open regarding the applicability of its analysis to technologies outside the broadcast retransmission context.

The ruling may even have implications for the ongoing IP transition proceedings at the FCC, as beneficiaries of interconnection obligations seek to ensure that those obligations remain in place following the IP transition. It has not taken commentators long to suggest the Supreme Court's congressional intent-based reasoning in Aereo may counsel a similarly technology-neutral application of interconnection obligations throughout the IP transition.

For its part, Aereo temporarily shut down its operations within days of the Supreme Court's ruling. How widespread the market impact will be beyond Aereo and whether investors will become more hesitant to back start-ups providing services that resemble a cable model is unsettled, unless those firms build copyright clearance into their business models. It is plain, however, that the opinion represents an important landmark in copyright law illustrating, as Professors Menell and Nimmer suggest, that "[t]he Copyright Act of 1976 is indeed creaky."

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.

Laura Phillips
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.


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 .


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.