Supreme Court Hears Argument in Aereo Case re Bringing Broadcast TV to the Internet

by JD Supra Perspectives
Contact

The public performance right is one of several stress points in the U.S. Copyright Law resulting from changes in technology, in particular from the technologies that make up the internet and all the devices that use it as a transmission medium.

When the public performance right was granted for music in 1897, there was really only one way such a performance could occur. Live performers could gather an audience from the public and sing and play in front of that audience. But over the years, advances in transmission and storage technologies made it possible to extend the reach of a performance.

The owners of the performable works saw their value slipping away from uses without payment and sought to find copyright infringement in the acts of makers and user of the new technologies. A highpoint in the evolution came with the Betamax case. There, the maker of a VCR device individuals used at home to capture broadcast content was accused of infringement. The Supreme Court, based on the facts of 1984 decided that whatever a VCR user did in his/her home to make and playback personal copies of audiovisual content was a fair use. The battle continued when community antennas provided a shared facility to aid home TV broadcast viewing. Because the CATV systems did not store performed content, copyright owners saw the service as a violation of public performance rights. Stress grew up around the proper meaning of “public” and “performance”, with consumer access to TV often being a guiding light.

The various new modes of digital content consumption have caused contention between content owners and content consumers. The consumers claim the right to copy, share and enjoy whatever content they have purchased (and sometimes whatever they can find). The content owners see traditional streams of revenue from copies and performances they once controlled disappearing. Providers of technology to the consumers, both profit-seeking and those claiming to serve the needs, even rights, of consumers, continue to offer devices and facilities that help consumers find, download, store, copy and playback (or “perform”) content.

The Napster cases showed that such facilitators can go too far, particularly when they sponsor or tolerate illegal copying and sharing, notwithstanding some copying and sharing being legal.

With cloud computing, services now allow consumers to store and retrieve content in a private storage area. The Aereo case opened an interesting front in the wars between content owners and consumers. Aereo builds massive antenna arrays tied to storage devices and rents individual antennas with associated private storage, to allow subscribing consumers to select, store and playback local broadcast TV programs. While the subscriber controls antenna tuning and content storage, it seems clear that the individual antennas are not an efficient approach, but rather are used mainly to support that each subscriber rents and controls all facilities needed to select, store and playback desired broadcast content.

Not surprisingly, several broadcast content providers see Aereo as profiting unfairly from their copyrights. After a ruling favoring Aereo in the Court of Appeals for the Second Circuit and split district court decisions involving two Aereo-like providers in other geographies, the broadcast content providers petitioned for cert; Aereo supported the petition, making its grant easier for the Supreme Court. As presented by the broadcast content providers, the question is whether Aereo, in operating its antenna and storage arrays for subscribers performs publicly the copyrighted works.

In the oral hearing on April 22, 2014, representatives of the broadcast content providers and Aereo, as well as the Solicitor General addressed the Supreme Court. The questions provided some possible signals as to the court’s thinking.

A central theme of several Justices’ (e.g., Breyer, Sotomayor) comments and questions was how a decision finding Aereo’s business to involve public performance could affect Dropbox or other cloud storage providers where consumers store performance content. They probed for the unforeseen consequences of a decision against Aereo.

Justice Sotomayor also asked whether the case could be resolved by finding Aereo to be behaving like a cable company, who might enjoy a compulsory license. The broadcaster’s counsel suggested that Aereo would not fit the existing regime for cable carriers.

Justice Ginsberg pressed Aereo’s counsel to explain whether there was a technically sound reason to have the many individual antennas or whether these were just a way to avoid breach of the Copyright Act. Aereo’s counsel offered two somewhat credible reasons, but the motivation for the thousands of individual antennas remained suspicious. In follow-up Justice Ginsberg pointed out that all other broadcast TV transmitters pay royalties, leading Aereo’s counsel to liken Aereo’s role to that of a seller of a home-located receive-record-playback system or to a cloud storage provider, who would be shocked to be seen as performing content publicly, just because multiple customers initiate playback of the same content each had stored separately.

In the end, the basic theme of the plaintiffs was that Aereo is making a profit on their content and paying no royalties, by characterizing itself as a mere consumer equipment provider, despite antenna arrays that appear a mere “gimmick”. On the other hand, Aereo presented itself as a helpful consumer equipment/service provider, acting only under the command and control of consumers, who are freely entitled to do all that Aereo helps them to do.

*

[Stuart Hemphill is a Partner in the Intellectual Property and Technology practice group of Dorsey & Whitney. His practice includes acquisition of patent, trademark, copyright and trade secret rights; licensing or other transfers of technology and intellectual property rights, particularly for computer hardware and software businesses, publishing/entertainment businesses and authors; and litigation concerning intellectual property rights and unfair competition. Contact: hemphill.stuart@dorsey.com]

[Image credits: aereo.com and movietimes.com]

Written by:

JD Supra Perspectives
Contact
more
less

JD Supra Perspectives on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.