“Aereo”

Authors: Decision of the Supreme Court 25 June 2014 – Case No 13461

Publish Date: 2014/11/18

Volume: 45, Issue: 8, Pages: 985-987

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Abstract

1 For a monthly fee Aereo offers subscribers broadcast television programming over the Internet … Much of this programming is made up of copyrighted works Aereo neither owns the copyright in those works nor holds a license from the copyright owners to perform those works publicly It works roughly as follows First when a subscriber wants to watch a show that is currently being broadcast he visits Aereo’s website and selects from a list of the local programming the show he wishes to see Second one of Aereo’s servers selects an antenna which it dedicates to the use of that subscriber and that subscriber alone for the duration of the selected show A server then tunes the antenna to the overtheair broadcast carrying the show The antenna begins to receive the broadcast and an Aereo transcoder translates the signals received into data that can be transmitted over the Internet Third rather than directly send the data to the subscriber a server saves the data in a subscriberspecific folder on Aereo’s hard drive In other words Aereo’s system creates a subscriberspecific copy – that is a “personal” copy – of the subscriber’s program of choice Fourth once several seconds of programming have been saved Aereo’s server begins to stream the saved copy of the show to the subscriber over the Internet … When two subscribers wish to watch the same program Aereo’s system … streams the show to the subscribers through two separate transmissions – each from the subscriber’s personal copya The Copyright Act clarifies that to “perform” an audiovisual work means “to show its images in any sequence or to make the sounds accompanying it audible” §101 Aereo and not just its subscribers “performs” or “transmits” We recognize … one particular difference between Aereo’s system and cable retransmission systems … These systems transmit constantly they send continuous programming to each subscriber’s television set In contrast Aereo’s system remains inert until a subscriber indicates that she wants to watch a program Only at that moment in automatic response to the subscriber’s request does Aereo’s system activate an antenna and begin to transmit the requested program This is a critical difference says the dissent It means that Aereo’s subscribers not Aereo “select the copyrighted content” that is “performed” … and for that reason they not Aereo “transmit” the performance Aereo is thus like “a copy shop that provides its patrons with a library card” … In our view however the dissent’s copy shop argument in whatever form makes too much out of too little Given Aereo’s overwhelming likeness to … cable companies … this sole technological difference between Aereo and traditional cable companies does not make a critical difference hereb Next we must consider whether Aereo performs petitioners’ works “publicly” When an entity communicates the same contemporaneously perceptible images and sounds to multiple people it transmits a performance to them regardless of the number of discrete communications it makes The subscribers to whom Aereo transmits television programs constitute “the public” The Act … suggests that “the public” consists of a large group of people outside of a family and friends Finally we note that Aereo’s subscribers may receive the same programs at different times and locations This fact does not help Aereo however for the Transmit Clause expressly provides that an entity may perform publicly “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”3 Aereo and many of its supporting amici argue that to apply the Transmit Clause to Aereo’s conduct will impose copyright liability on other technologies including new technologies that Congress could not possibly have wanted to reach We have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works such as the remote storage of content We agree with the Solicitor General that “questions involving cloud computing remote storage DVRs and other novel issues not before the Court as to which ‘Congress has not plainly marked the course’ should await a case in which they are squarely presented”1 There are two types of liability for copyright infringement direct and secondary As its name suggests the former applies when an actor personally engages in infringing conduct See Sony Corp of America v Universal City Studios Inc 464 U S 417 433 1984 Secondary liability by contrast is a means of holding defendants responsible for infringement by third parties even when the defendants “have not themselves engaged in the infringing activity” Id at 435 It applies when a defendant “intentionally induces or encourages” infringing acts by others or profits from such acts “while declining to exercise a right to stop or limit them” MetroGoldwynMayer Studios Inc v Grokster Ltd 545 US 913 930 2005 Most suits against equipment manufacturers and service providers involve secondaryliability claims This suit or rather the portion of it before us here is fundamentally different The Networks claim that Aereo directly infringes their publicperformance right

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