The Supreme Court Rules in Favor of Broadcasters in American Broadcasting Companies v. Aereo, Inc.

by Akerman LLP

On June 25, 2014, the Supreme Court issued a highly anticipated decision involving the latest clash of technology and copyright that marks a significant victory for television broadcasters. In American Broadcasting Companies v. Aereo, Inc., No. 13-461 (June 25, 2014) (Aereo), the Supreme Court ruled 6-3 to reverse the Second Circuit Court of Appeals and find that the controversial startup company Aereo violated United States copyright laws by streaming network television content to subscribers without paying retransmission fees to the copyright holders. 

The Aereo Decision

Aereo is a streaming service that launched in New York City in February 2012 and has since expanded to approximately a dozen cities. Aereo uses special high-definition antennas to capture free, over-the-air television signals and then stream the content to subscribers who pay a small monthly fee. When a subscriber selects a show for viewing, Aereo’s system creates a “personal copy” of the show and transmits the saved copy over the Internet, thus allowing subscribers to watch and record programs on their computers, mobile devices and televisions. Aereo specifically attempted to circumvent the Copyright Act by creating a system in which each subscriber is assigned a separate antenna such that each transmission sends a different copy of the selected program to the requesting subscriber. In this way, Aereo sought to avoid falling within the scope of the Copyright Act’s “public performance” clause by transmitting what it believed to be private performances to each individual subscriber. Aereo relied on this nuanced technological distinction to distinguish itself from cable companies who must pay retransmission fees. 

In Aereo, broadcasters, including Fox, ABC, NBC and CBS, sued Aereo claiming that the company’s unauthorized retransmission of their copyrighted television programming violated their statutory right to license the “public performance” of those works. On April 1, 2013, the Second Circuit denied the broadcasters’ request for a preliminary injunction and held that Aereo did not infringe upon their public performance rights because Aereo’s transmissions were “private performances.” The Second Circuit analogized Aereo’s technology to a rooftop antenna and found that because Aereo operated by sending a private transmission to a single subscriber each time a program is streamed, it was not a “public” performance. 

On Wednesday, in a majority decision authored by Justice Breyer, the Supreme Court reversed the Second Circuit’s ruling and rejected each of Aereo’s arguments. Turning first to Aereo’s contention that it is merely an equipment provider, the Supreme Court held that “Aereo’s activities are substantially similar to those of the CATV [community antenna television] companies” that Congress specifically amended the Copyright Act to reach. Aereo also failed to persuade the Court that its services constitute “private performances” because each transmission is sent to a single subscriber through the subscriber’s individual antenna. The Court held that “these behind-the-scenes technological differences do not distinguish Aereo’s system from cable companies, which do perform publicly.” Having concluded that Aereo “performs” copyrighted works “publicly” within the meaning of the Copyright Act, the Court reversed the Second Circuit’s decision and remanded the case to the lower court.

Justice Scalia authored a dissenting opinion that was joined by Justice Thomas and Justice Alito. While the dissent expressed distaste for Aereo’s business model, Justice Scalia stated that the majority opinion distorted the Copyright Act in order to prohibit Aereo’s activities. The dissent further held that Aereo’s services did not constitute copyright infringement, but rather, identified a “loophole” in the law that fell outside the Court’s purview and should be addressed by Congress.

The Effect of Aereo

Aereo has been closely watched by many technology and media groups who feared that a decision against Aereo could stifle cloud-based services that remotely store personal content on the Internet via servers from companies such as Google, Microsoft, Dropbox and Box. The Court recognized these concerns by stressing that its ruling against Aereo is limited to the specific facts of this case and should not discourage the emergence or use of new technologies. In the dissenting opinion, however, Justice Scalia expressed doubt as to the Court’s ability to deliver on this promise. 

While Aereo’s impact is far from clear, this case will likely have implications for the way content is delivered online. As for companies using technologies that operate like cable systems, one thing is clear: to adhere to copyright law, they must pay for the copyrighted programming they transmit. Moreover, the Court’s decision demonstrates that even if a company creates a business model to avoid being subject to the Copyright Act, this may not be enough to escape liability. Instead, courts may examine the company’s intent, as well as how the technology appears to the community at large, rather than analyzing the specific “behind-the-scenes” technology.

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.

© Akerman LLP | Attorney Advertising

Written by:

Akerman LLP

Akerman 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.