TC's inside IP - Summer 2013: Technology Continues to Test the Boundaries of Copyright Law

by Thompson Coburn LLP

Technological advances are stressing the seams of existing copyright law, forcing yet another industry to grapple with the prospect of disruption. At the nexus of this tension is AEREO, Inc. (“Aereo”), a streaming service that allows consumers to watch and record over-the-air broadcast television programming over the Internet. Entangled in a major battle against the broadcast networks who own the copyrighted content, Aereo recently scored a significant victory: the Second Circuit affirmed the denial of the networks’ bid for an injunction and held that Aereo likely did not infringe the networks’ copyrights1. As this ruling reverberates and the highly publicized dispute moves forward, broadcast networks fear the possibility of an upending of their long-existing business model, while cable companies and other key industry players closely monitor the outcome.


Aereo’s technology is key to the legal analysis in this case. On the front end, Aereo’s system is simple. An Aereo subscriber logs in to her account and choses either to watch or record over-the-air broadcast television programming from a list of available channels. If she chooses to “watch,” after a brief period of buffering, she is able to view live programming. If she chooses to “record,” the programming will be recorded for her to watch at a later time, similar to a home DVR system.


The core of this case rests on the Aereo system’s back end, comprised of an Antenna Server and a Streaming Server. When the user chooses to watch or record programming, a request is sent to Aereo’s Antenna Server. The Antenna Server contains many dime-sized antennas, which, according to Aereo (and accepted by the Court), operate independently from one another. The Antenna Server allocates one antenna and a transcoder to the user who made the request for receipt of the broadcast signal. Importantly, no two users are ever assigned a single antenna at the same time. The Antenna Server then sends a request to the Streaming Server, and the Streaming Server creates a unique user directory to store the data from the user-specific antenna and transcoder. This data is then accessible by the Aereo subscriber to watch “live” or at a later time.


Copyright law provides copyright owners six exclusive rights2. One of those rights, at issue in this case, is the exclusive right to publicly perform the copyrighted work3. Both to “perform” and to perform “publicly” are statutorily defined, with the second prong of the “publicly” definition, known as the “Transmit Clause,” meaning:


to transmit or otherwise communicate a performance or display the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times4.


The Transmit Clause was first incorporated into the 1976 Copyright Act, in response to the emergence of cable television systems and a desire to bring the retransmission of broadcast television programming under the umbrella of the public performance right.


The plaintiffs in this case argue that Aereo’s transmissions of broadcast programs fall within the Transmit Clause’s definition and that they are analogous to the retransmissions of network programming made by cable companies. Hence, they argue, Aereo is violating their public performance right without a license.


The Second Circuit confronted a similar set of issues in 2008 when it held that Cablevision’s Remote Storage – Digital Video Recorder (“RS-DVR”) system did not infringe public performance rights of copyrighted works5. Cablevision’s RS-DVR system allowed users to watch recorded programming by creating a copy of the program for that individual user on a user-specific portion of a remote hard drive. That meant that if 500 users wanted to record the same program, 500 different copies would be created, one for each user on the user’s dedicated portion of the remote hard drive, which no other user would have access to. The Cablevision court held that this transmission of recorded programming to an individual user was not a public performance. Since no other user could receive a transmission generated from that particular copy, the transmission was not made “to the public.”


The Aereo Court derived four “guideposts” from Cablevision with which to analyze the current case:


(1) If the transmission is capable of being received by the public, the transmission is a public performance; if the potential audience is only one subscriber, it is not a public performance.
(2) Private transmissions should not be aggregated – meaning it is irrelevant that the public could receive the same underlying work by means of many transmissions.
(3) But when private transmissions are generated from the same copy of the work, aggregation should apply in such cases, and if the aggregated transmissions from a single copy enable the public to view that copy, it qualifies as a public performance.
(4) Any factor that limits the potential audience of a transmission is relevant to the Transmit Clause analysis.


The Court rejected all of the plaintiffs' attempts to distinguish Aereo’s system from Cablevision using the Cablevision guideposts, and concluded that Aereo’s transmissions of unique copies of broadcast programming created at the users’ requests were not public performances.


Judge Chin offered a sharp dissent, accusing Aereo of creating a “Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.” He distinguished this case from Cablevision by stating that Cablevision involved a cable company paying statutory licensing and retransmission consent fees for the content it retransmitted, while Aereo does not pay any such fees. Moreover, the Cablevision subscribers already had the ability to view programming in real-time through their authorized cable subscriptions with the DVR service acting as a supplement. Aereo’s service, he said, does what cable companies do except that cable companies do so legally, pursuant to licenses.


The feud continues as the broadcasters have since requested the Second Circuit rehear the appeal en banc, while Aereo has announced its plans to launch in other major markets, including Atlanta and Boston in the very near future. CBS has threatened to sue Aereo “wherever Aereo attempts to operate” in response to this news, which inturn prompted Aereo to file a declaratory judgment action against CBS6.


This case encapsulates the increasing tension that such technological advances – likely not contemplated in 1976 – are putting on current copyright law. While Congress wanted retransmissions of network programs by cable systems to be considered “public performances” when it drafted the 1976 Copyright Act, it also intended that some transmissions, such as home recordings, be considered private. These sorts of adverse interests might ultimately prove to be irreconcilable by the courts, which may prompt Congress to listen to the growing chorus for an update of our copyright laws.



1WNET, Thirteen, et. al., v. AEREO, Inc., 712 F. 3d 676 (2nd Cir. 2013); American Broadcasting Companies Inc. et. Al. v. AEREO, Inc., 874 F. Supp. 2d 373 (S.D.N.Y. 2012)

217 U.S.C. § 106
317 U.S.C. § 106(4)
417 U.S.C. § 101

5Cartoon Network LP, LLLP v. CSC Holdings, Inc.?, 536 F.3d 121? (2nd Cir. 2008)??????????

6AEREO, Inc. v. CBS et. al., No. 13-3013 (S.D.N.Y. filed May 6, 2013)

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.

© Thompson Coburn LLP | Attorney Advertising

Written by:

Thompson Coburn LLP

Thompson Coburn 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.