U.S. Supreme Court rules that online television streaming Aereo is illegal

By Béatrice Martinet Farano

On 25 June 2014, the U.S. Supreme Court handed down its long awaited decision in American Broadcasting et al v. Aereo, holding that Aereo infringed the public performance rights owned by an association of broadcasters over their works.

Aereo is an online television streaming service that allows its subscribers to watch television programs over the internet at about the same time as the programs are broadcasted over the air. Because this retransmission is made through a complex system of thousands of small antennas, each of which is dedicated to the use of one subscriber at a time, Aereo argued that it did not publicly perform any of the copyrighted works and therefore did not infringe such works. While this argument was successful before the U.S. Court of Appeal for the Second District (see TTLF Newsletter No 2/2013 p.10-11), the Supreme Court reversed this decision and held that because Aereo had performed the broadcasters’ rights publicly within the meaning of the transmit clause (17 U.S.C § 106(4)), Aereo had infringed the rights of these broadcasters.

To reach this conclusion, the Supreme Court observed that Aereo both (1) performed these works and (2) that this performance was public.

First, the Supreme Court argued that Aereo “performed” the broadcasters’ work, rather than merely supplied equipment that allowed their users to do so. The Court considered that Aereo was in many ways akin to a pay TV provider, which pays for the right to air broadcasts, regardless of the technology it was based upon. These “behind the scenes technological differences”, argued the Court, could not distinguish Aereo’s system from cable systems, which Congress had made a point to include within the definition of the public performance clause. Because Aereo receives, by means of its technology, programs that have been released to the public and because it carries them by private channels to additional viewers, the Supreme Court argued that Aereo performed these works, regardless of the fact that the performance was actually commanded by a user.

The Court then held that this performance also had to be considered “public”. Here Aereo claimed that because it transmitted from user-specific copies, using individually–assigned antennas, and because each transmission was available to only one subscriber at a time, this performance could not be considered “public”. Taking another approach, the Supreme Court considered that when an entity communicates the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other, it transmitted “a performance” to “a public”, irrespective of whether it transmits such work using a single copy of the work or, as Aereo does, using an individual personal copy for each viewer.

The Supreme Court finally stressed that the scope of its decision was limited to the specific technology used by Aereo, with the aim of addressing the multiple concerns that had been voiced on the impact of this decision on the legality of multiple technologies, including cloud computing. After having repeatedly announced during trial that it would shut down its service should the Supreme Court hold its service illegal, Aereo finally announced on July 10 that it will seek a compulsory copyright license as a cable TV provider in order to continue its activity.

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