On June 25, 2014, the U.S. Supreme Court decided American Broadcasting Cos. v. Aereo, Inc., No. 13-461, holding that Aereo violates the Copyright Act by streaming near-live copyrighted television programming to subscribers over the Internet.
Aereo offers its subscribers access to antennas and servers that record live broadcast TV and stream it to subscribers over the Internet. The subscriber chooses the show he or she wishes to view, and when the broadcast of that show begins, Aereo's system assigns an antenna to record it exclusively for that subscriber. As it records, the system saves a digital copy of the show exclusively for that subscriber and streams the show to the subscriber from that copy, with a delay of at most a few minutes from the live broadcast. This process is duplicated for other subscribers who wish to view the same show.
The Copyright Act gives copyright owners the exclusive right to "transmit or otherwise communicate a performance…of the work…to the public, by means of any device or process, whether the members of the public capable of receiving the performance receive it in the same place or in separate places and at the same time or at different times." A group of owners of copyrights on broadcast TV programming sued Aereo, claiming its business violates these statutory rights. The lower courts denied the owners a preliminary injunction, with the U.S. Court of Appeals for the Second Circuit concluding that Aereo does not transmit "to the public" because it sends only individual private transmissions to its subscribers.
The Supreme Court reversed by a 6-3 vote and held that Aereo does violate the copyright holders' exclusive transmission rights. The Court noted that in the 1970s Congress amended the Copyright Act to "make clear that an entity that acts like a [cable TV] system itself performs" the programming it transmits. Although Aereo does not record or transmit a program except at the specific request of a subscriber, the Court held that "this sole technological difference between Aereo and traditional cable companies does not make a critical difference here," in light of "the many similarities between Aereo and cable companies." The Court further held that Aereo's transmissions are "to the public" because "an entity may transmit a performance through one or several transmissions," and so "when Aereo streams the same television program to multiple subscribers, it ‘transmits a performance' to all of them." The Court noted that its holding does not extend to the transmission of performances to "owners or possessors of the underlying works," and it stated that "questions involving cloud computing, remote storage DVRs and other novel issues…should await a case in which they are squarely presented."
Justice Breyer delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined. Justice Scalia dissented, joined by Justices Thomas and Alito.
Download Opinion of the Court