In the Courts: The Aereo decision: Exploring the implications

• Author: Lois F. Wasoff
• Position: Attorney-at-Law, Concord, Massachusetts, USA
• Pages: 10-13

2014 | 5p. 10 | IN THE COURTS

THE AEREO

DECISION:

Exploring the implications

By Lois F. Wasof,

Attorney- at-Law, Concord,

Massachusetts, USA

The main antagonists in the ca se of American Broadcasting

Companies, Inc. v. Aereo, Inc.(134 Sup.Ct. 2498 (June 25, 2014))

were, on one side, leading US television broadcasters and, on

the other, a startup company delivering b roadcast content to

subscribers over the Internet. Bu t interest in the outcome was

not limited to the named partie s. Many saw the dispute over

whether Aereo had infring ed the broadcasters’ rights when it

offered its serv ice without permission or payment as the latest

example of conict between in novation and copyright. The

US Supreme Court decision, announced in June, resolved

the legal issue by nding that Ae reo’s activities were infringing.

Whether that decision has broader implications for technology

and innovation is a matter of discuss ion and debate.

AEREO’S BUSINESS MODEL

Aereo’s service allowed subscrib ers paying a modest monthly

fee to watch broadcast television programs v irtually live on any

Internet-connected device. The broadcast signal was captured

and retransmitted using one of thousands of tiny antennae

maintained by Aereo. When a subs criber signed on to watch

a program, it was assigned a sp ecic antenna for the duration

of that session, and a separate copy of the pro gram was made

for that user.

This structure was not arbitra ry. Nor was it a coincidence that

Aereo’s service was rst offered i n New York, which falls within

the jurisdiction of the US appe als court for the Second Circuit.

In 2008, the Second Circuit had d ecided the case of Car toon

Network LP, LLLP v. CSC Holdings, Inc, (“Cablevision”) (536 F.

3d 121 (2008)) which involved a remote digital video recording

(R-DVR) service of fered by cable television provider Cablevision.

After the Supreme Court’s seminal 1984 decision in Sony Corp.

of America v. Universal City Stud ios, Inc., (464 US 417 (1984)),

it was clear that Cablevision’s customers could have recorded

television programs with set-top equipment in their homes

without infringing copy right. The question was whether they

could do essentially th e same thing using remote equipme nt

provided by Cablevision. The Second Circuit said they co uld,

reasoning that the user was ini tiating the copying, there was

a separate copy for each user, and the user’s playback was

not a public performance. Under US copyright law, the right

This article is base d on the webinar Copy-

right and the Aereo Dec ision presented

as part of the Beyond the Book se ries of

the Copyright Clearan ce Center (CCC) on

July 10, 2014, with Christopher Kenneally

of CCC and Lois F. Wasoff. A podcast

of the webinar is available at htt p://be-

yondthebookcast.com/.

Lois Wasoff’s consulting and lega l prac-

tice specializes in copyright, publishing

and licensing issues.