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U.S. Supreme Court Sides With Broadcasters in Aereo Case

In a major victory for television broadcasters, the U.S. Supreme Court held today that Aereo, which allows subscribers to stream over-the-air television programming via the Internet at virtually the same time it is being broadcast, is illegally transmitting copyrighted material. 

Television broadcasters brought suit against Aereo, claiming that it was violating the Copyright Act by infringing on their right to “perform” their copyrighted works “publicly,” known as the Transmit Clause. Aereo uses a system of thousands of small antennas each dedicated to an individual subscriber that can capture television broadcasts and make a copy that can be transmitted to the subscriber’s computer or mobile device. Aereo claimed that it was simply supplying the equipment for the subscriber to obtain the broadcast. The U.S. Court of Appeals for the Second Circuit agreed with Aereo and held that did not violate the Transmit Clause as it did not stream directly to the public, but instead sent an individualized, private signal directly to each subscriber from their own antenna.

In today's decision, the Supreme Court disagreed. Justice Stephen Breyer, writing for the 6-3 majority, wrote that Aereo “performs” works “publicly” under the definition of the Transmit Clause, which was revised in 1976 in response to the retransmission of broadcast television by cable companies. These changes to the Copyright Act required the cable companies to pay retransmission fees for the right to deliver copyrighted broadcast television to their customers. Much like a cable company, the Court found that Aereo was “performing” as it “transmitted a performance” of the copyrighted material to its subscribers. It also found that it did so “publicly” as even though in Aereo’s case each transmission was unique to the subscriber, it was transmitting to multiple subscribers at once. 

In dissent, Justice Antonin Scalia argued that Aereo was more like a “library card” which allowed subscribers to obtain whatever broadcasts are freely available, rather than Aereo making the choice of content. Thus, it was not "performing" and did not infringe on the broadcasters' public performance right.

The decision, American Broadcasting Cos., Inc. et al v. Aereo, can be read at the Supreme Court’s website

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