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SCOTUS: Aereo Streaming Service Violates Copyright Law

SCOTUS: Aereo Streaming Service Violates Copyright Law

In a 6-3 decision, the Supreme Court has ruled that the Aereo video streaming service operates in violation of the Copyright Act of 1976, and the Act’s Transmit Clause.

Aereo is a video streaming service that allows subscribers (at around $8/month) to view live, over-the-air programming via the internet. The service also includes DVR-like capabilities, allowing for the recording of live programming to be watched later. Shortly after Aereo’s launch last year, other television providers (think major networks) sued, claiming that the service violates the networks’ right to publicly perform their copyrighted material.

The Court rejected Aereo’s argument that the company is merely an “equipment provider” and sided with the television providers (with Justices Scalia, Alito, and Thomas dissenting,) saying that the heart of Aereo’s service involves a public performance of copyrighted material.

Justice Scalia’s dissent characterizes the majority’s reasoning as “guilt by resemblance,” saying that Aereo’s service differs from other services that the Court has previously held offer public performances of copyrighted material:

The rationale for the Court’s ad hoc rule for cable-system lookalikes is so broad that it renders nearly a third of the Court’s opinion superfluous. Part II of the opinion concludes that Aereo performs because it resembles a cable company, and Congress amended the Act in 1976 “to bring the activities of cable systems within [its] scope.” Ante, at 8. Part III of the opinion purports to address separately the question whether Aereo performs “pub- licly.” Ante, at 10–15.

Trouble is, that question cannot remain open if Congress’s supposed intent to regulate whatever looks like a cable company must be given legal effect (as the Court says in Part II). The Act reaches only public performances, see §106(4), so Congress could not have regulated “the activities of cable systems” without deeming their retransmissions public performances.

The upshot is this: If Aereo’s similarity to a cable company means that it performs, then by necessity that same char-acteristic means that it does so publicly, and Part III of the Court’s opinion discusses an issue that is no longer relevant—though discussing it certainly gives the opinion the “feel” of real textual analysis.

Although the case has been remanded back to the Second Circuit for additional argument, it’s a safe bet that you should work your way through those episodes of 24 you’ve been stockpiling.

Farewell, Aereo. We hardly knew thee.

You can read the opinion in American Broadcasting Cos. v. Aereo, Inc., here.


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Innovation in the kludged up regulatory state will be impeded.

But it will still happen. The trajectory is irresistible. Markets will only put up with this for just so long.

Aereo receives, converts, and transmits an open, public signal. Not unlike an aerial, which has a fixed price, but like other distributors, which operate as a subscription service. Perhaps that’s where they crossed the line.

Whether they perform or not, I’m surprised the Court didn’t seek to regulate them under the commerce clause. It seems that all of the progressive tax schemes fall under the Treasury’s purview. Aereo must have stepped on some really hypocritical toes.

MouseTheLuckyDog | June 25, 2014 at 4:52 pm

I remember a 60s show called THat’s Life with Robert Morse.
I(t was this great one year series with a theme of boy meets girl, boy dates girl, boy and girl wed, girl has child …

Many of the people who still rememwer it, would like to see it on DVD, but you will not see it for a long time.

The series was set to music, and the licensing would require a DVD to cost $1000.

Suprisingly it was the conservative faction that sided with Aereo.

Areo is not and does not resemble a cable company. That’s the first part of retarded. Areo does not do public performances. A public performance is like at a park or a diner some place where groups of people congregate. This is just a one on one personal replay of a publicly broadcasted signal something that is not prohibited. Areo is like a VCR with the only exception is that it is provided as a service. How this qualified as violating Fox or ABC’s rights I don’t know. Obviously the case case shows the limits of what the Supreme Court can do.

    I’m not going to say this has any legal relevance to this case per se, but just because you can legally record an NFL game for your own use doesn’t mean you can host a party with your 70 inch LCD TV… AND charge $5 for admission plus concessions. That’s just not considered legal, best I can recall. I mean, good luck chasing people down for it in actual practice, but there’s a line there and once you cross it you’re not in acknowledged safe territory anymore.

      charleswayne in reply to JBourque. | June 28, 2014 at 2:06 pm

      A store can rent you a TV antenna. That is legal, and you can use the antenna and receive broadcasts. They can rent you a tuner, and you can use the tuner to tune in broadcasts from the antenna.

      They can rent you a DVR, and you can use the DVR to record the broadcast that you received from the rented antenna and the rented tuner.

      They can provide the DVR with network access, so you can watch what is on the DVR over your own network, or even make it available to other networks.

      This ruling says that the one thing you CANNOT do, is rent all these things and have them sit somewhere other than your own house. Because apparently if you rent them in another building, it is like a “cable company”.

      Except the cable company provides me access to purchased channels of information, which they provide me for a fee that they charge. If I also RENT EQUIPMENT, it is an extra charge. I am paying the cable company for ACCESS to programming, not for equipment that can receive access.

      In fact, the only reason we get broadcast over cable is that the cable companies are forced to provide it.

I have an antenna on my roof. I get 8 channels including ABC, CBS, NBC, Fox and PBS along with some sub digital channels, even some in Spanish.

Am I an outlaw! Yeah…. an outlaw. Gonna get me a do-rag and a tat. Bad ass is my middle name.

One of the first lines from the dissent: “There are two types of liability for copyright infringement: direct and secondary.”

It is the whole concept of “secondary” infringement which is wrong, and IMO, beyond the authority the copyright clause in the US Constitution allows the Judiciary to decide upon, the Executive to enforce, and the Legislature to legislate.

And while the majority ruling relied on a weak and twisted chain of logic claimed to be rooted in “direct infringement”, actually this claim of copyright violation would have never made it to the Supreme Court without the modern history of practice and decisions deriving from the concept of “secondary infringement”.