Aereo Granted Cert - Fordham Intellectual Property, Media & Entertainment Law Journal
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Aereo Granted Cert

Aereo Granted Cert

The Supreme Court recently granted certiorari to a copyright dispute that could drastically change copyright law and how we all watch television.  American Broadcasting Companies, Inc. v. Aereo, Inc., a case brought by the major broadcast networks, including ABC, NBC, CBS, and PBS, alleges copyright infringement against Aereo for their practice of transmitting free broadcast shows via dime-sized antennas. The practice of streaming content is certainly not new, but a decision that this practice does not violate the Copyright Act, could change the face of television broadcasting as we know it.

Aereo’s antennas provide customers with the ability to “receive and record a broadcast of that program via antenna and then transmit that recording to themselves over the Internet.” Users log onto the Aereo website and select the program they wish to record, users are then assigned a small antenna, which then records the selected program. The system allows the user to then stream the show a few minutes after the start time or at a later time of their choosing. This unique user, though, is the only individual allowed to access the recorded program.

The networks’ theory of infringement for the case revolves around the provisions of the Copyright Act that grant a copyright holder the exclusive right to “perform the copyrighted work in public.” However, the Second Circuit agreed with Aereo, that their transmission did not amount to public performance as restricted by the Act. Here the Court relied on its precedent in Cartoon Network LP, LLLP v. CSC Holdings, Inc. (Cablevision), holding transmissions via individual antennas to be a form of private transmission and not public. In other words, every Aereo subscriber using their own antenna is privately transmitting the performance into their home—amounting to millions of private transmissions rather than one large public transmission.

The networks argue that this practice severely threatens their business model. The broadcast networks rely on selling the programming to cable and satellite companies. Aereo’s transmission of free content directly into people’s homes threatens to undercut this model upon which the industry has relied since the dissemination of cable. The Supreme Court has granted review in order to determine “whether retransmitting a broadcast to paid subscribers, over the Internet, constitutes a public performance.”

The District Court in denying the networks’ request to enjoin Aereo found: “Aereo contends that, like the RS-DVR system in Cablevision, its system creates unique, user-requested copies that are transmitted only to the particular user that created them and, therefore, its performances are nonpublic.” The broadcasters argued that because the streaming provided by the Aereo antennas allows customers to watch live television, subscribers are not using a copy (like one stored in your DVR) thus constituting a public performance emanating from the original broadcast signal.  Judge Nathan in the Southern District of New York found that the copies in Cablevision were not materially different from those created by Aereo. In Cablevision, the court found that the transmission originated from the copies and not from the original broadcast signal.

Interestingly, Cablevision, the case upon which the Second Circuit and District Court based their decisions was denied certiorari in 2009, making this decision more interesting and one to watch. Arguments will be held in April with a decision likely to come down in June.

Nicole Marimon

Nicole Marimon is a third year Fordham law student and IPLJ Online Editor. Her interest in IP comes from her love of books, her journalism background, and too much time spent with her technology savvy roommate. In her spare time, she cooks and spends time helping her dog establish an online presence. #nenushka