ABC, Inc. v. Aereo, Inc., 571 U.S. __ (Jan. 10, 2014) (No. 13-461)
The U.S. Supreme Court has agreed to hear an appeal by major television broadcasters from a decision permitting Aereo, Inc. to continue streaming over-the-air television broadcasts to its paying subscribers without compensating the networks or other content providers.
In April 2013, the U.S. Court of Appeals for the Second Circuit affirmed the denial, by a federal judge in New York, of the television networks’ motion to preliminarily enjoin Aereo’s service, which uses thousands of coin-sized antennas to receive over-the-air broadcasts and stream them separately to its different users. See American Broadcast Co., Inc. v. Aereo, Inc., 874 F. Supp. 2d 373 (S.D.N.Y. 2012).
Under Section 106 of the U.S. Copyright Act, copyright owners have the exclusive right to make a “public performance” of their works. The broadcasters argue that Aereo – like cable and satellite companies – should therefore be required to pay for a license to rebroadcast the networks’ content.
The Second Circuit rejected that argument, however, holding that because Aereo dedicates one antenna to one subscriber at any given time (hence the thousands of separate antennas), and each transmission goes to only a single user, there is no “public” performance, and therefore the streaming does not encroach on the copyright owners’ exclusive public performance right. WNET v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013).
The Second Circuit’s majority decision turned on its reading of the “Transmit Clause” in the definition of a public performance under the U.S. Copyright Act, which provides:
To perform or display a work “publicly” means . . . to transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
Because the Aereo system involves separate reception and transmission of a broadcast for each separate Aereo subscriber, the Second Circuit majority ruled that there were numerous private transmissions to individual subscribers, but no public performance.
Second Circuit Judge Denny Chin argued, in dissent, that Aereo is “over-engineered” to take advantage of a loophole in the Copyright Act. Federal courts in California and Washington, D.C. have followed Judge Chin’s lead, finding that the streaming conducted by Aereo and another similar service is made generally available to members of the public and therefore constitutes a “public performance” under the Copyright Act, even if each subscriber views his or her own unique copy separately.
The Supreme Court will hear the networks’ appeal from the Second Circuit decision this spring.