Curtains for Aereo: Supreme Court Finds Copyright Infringement

by K&L Gates LLP

On June 25, 2014, the U.S. Supreme Court ruled 6-3 that upstart Aereo’s TV-over-the-Internet service violates broadcasters’ exclusive right to publicly perform their copyrighted programs. The Court’s decision is expected to shut down Aereo and similar unlicensed services.

The Aereo case raised two legal questions: first, whether Aereo performed the broadcasters’ copyrighted works; and second, whether Aereo transmitted the performance to members of the public. Resolution of these questions turned upon the definitional language in the Copyright Act of 1976, which, as the Court noted, had been adopted to reverse its earlier decisions immunizing CATV and cable systems from copyright liability.

Many interested parties filed “friend of the court” briefs in support of either Aereo or the broadcasters. K&L Gates represented one such party, the American Intellectual Property Law Association (AIPLA), and its brief can be found here. The AIPLA brief urged the Court to answer both of the issues raised—whether Aereo performed and whether it transmitted to the public—in the affirmative, but to frame its decision narrowly lest it limit the development and deployment of truly innovative, non-infringing technologies. And this is what the Court did.

The technology employed by Aereo captures over-the-air broadcasts using thousands of miniature antennas, each assigned to an individual subscriber who chooses the programs. Aereo records the broadcast signals in subscriber-specific folders on its server drives. The signals are then streamed, after a few seconds’ delay, to any internet-connected device of the subscriber’s choosing, whether that be a smart phone, a computer, or a television set.

The Copyright Act states that the exclusive right of public performance includes the right to “transmit or otherwise communicate a performance . . . of the [copyrighted] 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.”

With respect to the question of whether Aereo performs, the Court determined that Aereo does more than merely supplying equipment that enables subscribers to select, record, and transmit performances. Aereo functions much like a CATV or cable television service and, like them, needs a license to retransmit copyrighted content. (The three dissenting justices would hold, rather, that it is Aereo’s subscribers who, through their own volitional conduct, perform the copyrighted works, making Aereo liable, if at all, only for secondary infringement.)

As to whether Aereo performs the copyrighted works publicly, the Court had little difficulty concluding that it does. The Court assumed, for the sake of argument, that the only performance Aereo transmits is that inherent in its transmissions. But the Court rejected Aereo’s argument that such transmissions should be regarded as private because they go to subscribers individually. In addition to the practical similarity between Aereo’s service and cable systems, the language of the Copyright Act encompasses multiple transmissions and their receipt in different places and at different times. These transmissions go to the public, because Aereo’s subscribers are a large group of people outside the normal circle of family and friends.

The Court took pains to distinguish Aereo’s service from other cloud-based offerings. It noted, for example, that Aereo’s subscribers do not have any prior relationship to the copyrighted works in question; they do not receive performances of works that they own or possess. If they did, the performances likely would not be to “the public.” The Court likened this situation to a parking valet’s returning cars to their drivers rather than to the public.

The Court also described its holding as “limited”: The decision focuses on a system functionally equivalent to a cable system; it addresses transmissions, not the distribution of copies (i.e., streaming, not downloading); and it should not be read to apply where a “user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content.”

Finally, the Court pointed out that transmissions are not public if limited to a family and its social circle, and it cited the doctrine of fair use as a check on inappropriate or inequitable applications of the public performance right. The Court concluded: “We cannot now answer more precisely how the... Copyright Act will apply to technologies not before us.” It suggested that those answers would emerge in future cases. To the extent that this is unsatisfactory, the Court advised interested parties that they can seek clarification from Congress.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© K&L Gates LLP | Attorney Advertising

Written by:

K&L Gates LLP

K&L Gates LLP 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.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

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.


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 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:

- 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.