U.S. Supreme Court

Aereo loses copyright challenge; its Internet TV service violates copyright law, SCOTUS says

The U.S. Supreme Court has ruled against Aereo in a copyright challenge to its Internet TV service.

At issue was whether Aereo violates broadcast copyrights when it uses miniature antennas to transmit TV programs over the Internet to its subscribers at about the same time the shows are broadcast. In a 6-3 opinion, the U.S. Supreme Court found a copyright violation.

In early coverage of the decision, SCOTUSblog founder Tom Goldstein said the ruling “appears sweeping and definitive, determining that Aereo is illegal.”

The majority opinion (PDF) by Justice Stephen G. Breyer found that Aereo violated a provision of the Copyright Act that gives copyright holders the exclusive right to “transmit or otherwise communicate a performance” of a copyrighted work to the public.

The Supreme Court decision overturned a ruling by the New York-based 2nd U.S. Circuit Court of Appeals, which found Aereo does not transmit to the public because it sends a private transmission of TV programs only to its subscribers.

Breyer said that Aereo’s activities are substantially similar to that of cable companies, which are regulated under a 1976 amendment to the copyright law. His opinion found that Aereo “performs” copyrighted works and it does so publicly, bringing it within the copyright law’s reach.

The fact that Aereo transmits a program through a dedicated antenna only to the subscriber who selected it does not make a difference, Breyer said. Aereo still transmits copyrighted programs to a large group of people who are unrelated and unknown to each other, and they constitute “the public,” Breyer wrote.

Breyer pointed out the argument by amici that a ruling against Aereo will discourage new technology. “But we do not believe that our limited holding today will have that effect,” he said.

“We cannot now answer more precisely how the transmit clause or other provisions of the Copyright Act will apply to technologies not before us,” Breyer said. “We agree with the Solicitor General that ‘questions involving cloud computing, [remote storage] DVRs, and other novel issues not before the court’ ” should await a case where they are squarely at issue.

Justice Antonin Scalia dissented in an opinion joined by Justices Clarence Thomas and Samuel A. Alito Jr. The dissent noted that Aereo broadcasts to its subscribers only those programs that they select. Aereo is “akin to a copy shop that provides its patrons with a library card,” Scalia argued, and it is the subscribers who transmit the copyrighted program to their screens.

“In sum, Aereo does not ‘perform’ for the sole and simple reason that it does not make the choice of content,” Scalia said. As a result, Aereo should not be directly liable for infringement, he concluded.

“I share the court’s evident feeling that what Aereo is doing (or enabling to be done) to the networks’ copyrighted programming ought not to be allowed,” Scalia said. “But perhaps we need not distort the Copyright Act to forbid it. As discussed at the outset, Aereo’s secondary liability for performance infringement is yet to be determined, as is its primary and secondary liability for reproduction infringement. If that does not suffice, then (assuming one shares the majority’s estimation of right and wrong) what we have before us must be considered a ‘loophole’ in the law. It is not the role of this court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes.”

The case is ABC Inc. v. Aereo Inc

Prior coverage:

ABAJournal.com: “Supreme Court dubious about Aereo’s low-cost TV, but wary that ruling could curtail cloud technology”

ABAJournal.com: “Does Aereo’s Internet TV service violate network copyright? SCOTUS to decide”

We welcome your comments, but please adhere to our comment policy and the ABA Code of Conduct.

Commenting is not available in this channel entry.