In the Courts: The Aereo decision: Exploring the implications

Author:Lois F. Wasoff
Position:Attorney-at-Law, Concord, Massachusetts, USA
2014 | 5p. 10 | IN THE COURTS
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 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-
Lois Wasoff’s consulting and lega l prac-
tice specializes in copyright, publishing
and licensing issues.

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