In American Broadcasting Companies, Inc. v. Aereo, Inc. (June 25, 2014, No. 13-461) 2014 U.S. Lexis 4496, the issue before the court was “[w]hether a company ‘publicly performs’ a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.” The defendant Aereo, Inc. permits users to record and access broadcast television programs via the Internet through an antenna the size of a dime. Aereo does not pay the broadcasters of such programs any fee. Major network broadcasters who are the petitioners assert that this infringes their copyrights to be paid for a “public performance” of copyrighted programs. One of the key rights for copyright holders is the exclusive right “to perform a work in public.”
The technology that Aereo uses results in a captured program airing directly to one subscriber through one small antenna. Each subscriber has his own assigned antenna. There are not multiple subscribers receiving programming on a single antenna. Aereo argued that retransmission in this fashion does not constitute a “public performance” under the Copyright Act and that it is not appropriate to aggregate all of the individual subscribers with their individual antennae to conclude that the rebroadcast is a “public performance.”
The broadcasters argued that indeed such rebroadcasting to thousands of subscribers is a public performance regardless of whether each subscriber has a separate assigned antenna.
On Wednesday, June 25, the Court issued its opinion in Aereo holding that Aereo’s form of broadcasting is a “public performance” of copyrighted material under the Copyright Act; and, thus, the broadcast is subject to a claim of copyright infringement. Looking at the legislative history of the Copyright Act, the Court concluded that Aereo’s conduct constitutes (a) performance that is (b) public. Justice Breyer wrote the opinion for the majority. Justice Scalia, joined by Justices Alito and Thomas, dissented.
In responding to amici’s concerns with the adverse effect of its ruling on the development of other technologies, the court emphasized that its holding only applied to the system and circumstances presented in the case. It went on to state:
“We cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us. We agree with the Solicitor General that ‘[q]uestions involving cloud computing, [remote storage] DVRs, and other novel issues not before the Court, as to which “Congress has not plainly marked [the] course,” should await a case in which they are squarely presented.’ And we note that, to the extent commercial actors or other interested entities may be concerned with the relationship between the development and use of such technologies and the Copyright Act, they are of course free to seek action from Congress. Cf. Digital Millennium Copyright Act, 17 U.S.C. Sec. 512.”
There is no question that Aereo is a blockbuster case for the broadcast industry. But its reasoning is rather limited to application of the Copyright Act’s “perform in public” clause to a specific factual context. As Justice Breyer makes clear above, whether other technologies will be implicated must be left to another day and another case.