The Supreme Court has ruled that
the Aereo operates much like a cable television service whose retransmission of
copyrighted material constitutes a public performance requiring broadcaster
consent. [1]
The decision effectively shuts down Aereo and appears to nullify the lower
court decision in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F. 3d 121
(2008) that considered
subscriber ordered copying of content a private act that does not violate
copyright law.
Writing
for the majority Justice Breyer distilled the case into two questions: “First,
in operating in the manner described above, does Aereo “perform” at all? And
second, if so, does Aereo do so ‘publicly.’” [2] The majority decision answers both question
in the affirmative. Aereo performs,
because its broadcast signal retransmission and copying function parallels the
functions of a cable television venture and satisfies the definition of
performance enacted by Congress in the 1976 amendment of the Copyright Act. [3]
Referring
to the legislative history of the 1976 amendment, Justice Breyer reports that
Congress consciously sought to reverse two Supreme Court decisions that
considered the cable television retransmission function not a public
performance. In Fortnightly Corp. v. United Artists Television, Inc., 392 U. S.
390 (1968), the Court held that a community antenna television (“CATV”) system did
not publicly perform copyrighted broadcast television content when it simply distributed it to subscribers
without alteration in much the same way that individuals could have done using
their own antennas. In Teleprompter Corp. v. Columbia Broadcasting System,
Inc., 415 U. S. 394 (1974), the Court considered the copyright liability of a
CATV provider that delivered broadcast television programming from distant
sources that subscribers could not receive if they had erected a rooftop
antenna. The Court had reasoned that
cable operators functioned like a private viewer and not a broadcaster, or
performer. [4] Justice
Breyer reasoned that because Congress expressly created language deeming
content transmission a public performance, the Court had to treat the Aereo
delivery service as the functional equivalent of a transmission and public
performance, notwithstanding the fact that subscribers initiate the
transmission and copying functions performed by the company:
This history makes clear that Aereo is
not simply an equipment provider. Rather, Aereo, and not just its subscribers,
“perform[s]” (or “transmit[s]”). Aereo’s activities are substantially similar
to those of the CATV companies that Congress amended the Act to reach. [5]
The
majority decision rejects as insignificant a difference in the manner by which
copyrighted content reaches subscribers. [6]
Cable retransmission occurs simultaneously and continuously without
authorization, or direction from subscribers while Aereo requires subscribers
to initiate the service and determine whether to direct equipment to make
copies. Writing
in dissent, Justice Scalia considers this difference significant, because the
transmission and copying function does not occur unless and until a subscriber
directs Aereo equipment to activate. [7]
Justice Scalia analogized the coordination between Aereo and its subscribers to
that which occurs when a copy center issues an equipment activation and library
card for customers who make copies on their own volition using the copy
center’s equipment. [8]
On
the issue of whether Aereo publicly performs copyrighted material, the Court
majority determined that the company did despite having installed a dedicated
antenna for the exclusive use of one subscriber. Even if the Court were to accept the view
that Aereo initiated a new performance in its reception and retransmission
function, the majority still considered the performance public. [9] Justice Breyer reasoned that Congress
intended on protecting broadcasters’ copyrights even if technological
innovations involved subscriber interaction with equipment and content streams
did not flow instantaneously and constantly to subscribers:
[W]hy should any of these technological
differences matter? They concern the behind-the-scenes way in which Aereo
delivers television programming to its viewers’ screens. They do not render
Aereo’s commercial objective any different from that of cable companies. Nor do
they significantly alter the viewing experience of Aereo’s subscribers. Why
would a subscriber who wishes to watch a television show care much whether
images and sounds are delivered to his screen via a large multisubscriber
antenna or one small dedicated antenna, whether they arrive instantaneously or after a
few seconds’ delay, or whether they are transmitted directly or after a
personal copy is made? And why, if Aereo is right, could not modern CATV
systems simply continue the same commercial and consumer-oriented activities,
free of copyright restrictions, provided they substitute such new technologies
for old? Congress would as much have intended to protect a copyright holder
from the unlicensed activities of Aereo as from those of cable companies. [10]
The
majority opinion interprets the Transmit Clause contained in the 1976 Copyright
Act amendments[11]
as applicable regardless whether there are multiple, geographically diverse,
discrete, time-delayed or subscriber-initiated transmissions from Aereo
equipment.[12]
While sensitive to the possibility that its decision at least temporarily block
technological and entrepreneurial innovations, the Court suggests that Congress
can and will act, just as it did in response to the onset of cable television.
The Court also recognizes that fair use may allow some innovations to flourish
and also seeks to exempt the decision from related questions about
Internet-based, “cloud” storage of content.
[1] American Broadcasting Cos., Inc. v.
Aereo, Inc., ___ U.S. ___ (June 25, 2014) (slip op.); available at: http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf
[hereinafter cited as Aereo Revesal].
[4] “Although the Court recognized that a
viewer might not be able to afford amplifying equipment that would provide
access to those distant signals, it nonetheless found that the CATV provider
was more like a viewer than a broadcaster.” Aereo Reversal at 6.
[5] Id.
at 8. “Aereo’s equipment may serve a
‘viewer function’; it may enhance the viewer’s ability to receive a
broadcaster’s programs. It may even emulate equipment a viewer could use at
home. But the same was true of the equipment that was before the Court, and
ultimately before Congress, in Fortnightly and Teleprompter.” Id. at 9.
[6]
“Given
Aereo’s overwhelming likeness to the cable companies targeted by the 1976
amendments, this sole technological difference between Aereo and traditional
cable companies does not make a critical difference here.” Id. at 10.
[7] “Rather, it assigns each subscriber antenna
that—like a library card—can be used to obtain whatever broadcasts are freely
available. Some of those broadcasts are copyrighted; others are in the public
domain. The key point is that subscribers call all the shots: Aereo’s automated
system does not relay any program, copyrighted or not, until a subscriber
selects the program and tells Aereo to relay it.” Justice Scalia Dissent at 6.
[8] “A comparison between copy shops and
video-on-demand services illustrates the point. A copy shop rents out
photocopiers on a per-use basis. One customer might copy his 10-year-old’s
drawings—a perfectly lawful thing to do—while another might duplicate a famous
artist’s copyrighted photographs—a use clearly prohibited by §106(1). Either
way, the customer chooses the content and activates the copying function; the
photocopier does nothing except in response to the customer’s commands. Because
the shop plays no role in selecting the content, it cannot be held directly
liable when a customer makes an infringing copy.” Id. at 4. “Aereo does not “perform” for the sole and simple reason
that it does not make the choice of content. And because Aereo does not
perform, it cannot be held directly liable for infringing the Networks’
public-performance right.” Id. at 6.
[9] “When an Aereo subscriber selects a
program to watch, Aereo streams the program over the Internet to that
subscriber. Aereo thereby “communicate[s]” to the subscriber, by means of a “device
or process,” the work’s images and sounds. §101.And those images and sounds are
contemporaneously visible and audible on the subscriber’s computer (or other
Internet-connected device). So under our assumed definition, Aereo transmits a
performance whenever its subscribers watch a program.” Aereo Reversal at 12.
[12] “Therefore, in light of the purpose and
text of the Clause, we conclude that when an entity communicates the same
contemporaneously perceptible images and sounds to
multiple people, it transmits a performance to them
regardless of the number of discrete communications it makes.” Aereo Reversal
at 14. “So whether Aereo transmits from the same or separate copies, it
performs the same work; it shows the same images and makes audible the same
sounds. Therefore, when Aereo streams the same television program to multiple
subscribers, it ‘transmit[s] . . . a performance’ to all of them.” Id.
4 comments:
Rob,
It all boils down to control. The networks, the cable companies and the entertainment conglomerants now have end to end control. No matter how inovative a new technology may be the owners of the "content" can stiflle it before it sees the light of day. I had high hopes for Aero, but wait till next time.
jim
Thanks, Rob, this is helpful.
Jeff Hart
Thanks, Rob, this is helpful.
Aereo didn't lose, it was disrupted.
Post a Comment