Supreme Court Issues Ruling On Aereo And The Public Performance Right

On June 25, 2014, the US Supreme Court reversed a decision of the Second Circuit and held that Aereo publicly performs copyrighted television programming.1 The case has important implications for the public performance right under the Copyright Act and for new technologies and online services that make copyright-protected content available to the public.

The Aereo Service

Aereo is an online service that gives its subscribers the ability to view broadcast television programs on a variety of internet-connected devices like smartphones and tablets. Aereo's system consists of thousands of individual antennas connected to a remote server. Each subscriber is assigned an antenna, and no two users share the same antenna, even when watching the same program. Rather than transmit the feed directly to the user, Aereo creates a unique copy for each user of the desired program on its remote server. Then, depending on whether the user chooses "watch" or "record," the user-specific copy either is transmitted directly to the user or saved for later viewing. Aereo does not pay the copyright owners of the programming for the right to make their content available to its subscribers.

The Proceedings Below

In March 2012, several broadcast networks sued Aereo for copyright infringement. The district court denied their request for a preliminary injunction.

The networks appealed, claiming that Aereo's service infringed the exclusive right to publicly perform their copyrighted programming. In a split decision, the Second Circuit affirmed the district court's ruling. The court found that, because Aereo created a unique copy of the programming for each individual user, the potential audience for any Aereo transmission was only a single consumer. Unlike the transmissions made by cable system operators, which are capable of being received simultaneously by multiple recipients, Aereo's transmissions were private performances. The majority relied heavily on its 2008 Cablevision decision, which held that a remote-storage DVR system did not publicly perform the copyright owners' content. According to the court, the Aereo system was "not materially distinguishable" from the Cablevision system because each subscriber's selection created a unique individual copy of a given program that was accessible only to the user who made it rather than to the public at large.

The Supreme Court Decision

Writing for the majority, Justice Breyer addressed two questions: whether Aereo...