This term, the one case most likely to affect the lives of ordinary citizens is probably ABC v. Aereo, Inc., a copyright case with broad implications for the technology and entertainment industries.
Since February 2012, Aereo, Inc., has sold a service that allows its subscribers to watch television programs over the Internet at about the same time as the programs are broadcast over the air. It did so by picking up broadcast signals with antennas and transmitting those signals on a slight time delay via its streaming service to its clients. ABC, along with other media and broadcasting companies that own the copyrights in many of the programs that Aereo streams, sued Aereo for copyright infringement, arguing that Aereo’s streaming service constituted an unlicensed “public performance” under the Copyright Act of 1976.
The Copyright Act gives a copyright owner the exclusive right to “perform the copyrighted work publicly.” The Act’s Transmit Clause defines that exclusive right to include the right to “transmit or otherwise communicate a performance . . . of the [copyrighted] work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times.”
Reversing the Second Circuit, the Supreme Court, per Justice Breyer, ruled that Aereo’s streaming service constituted a public performance under the Copyright Act. The majority held that because the Copyright Act defines performance of an audiovisual work as “show[ing] its images in any sequence or to make the sounds accompanying it audible,” both the broadcaster and the viewer “perform,” because they both show a television program’s images and make audible the program’s sounds. The Court analogized Aereo’s services to the community antenna television providers that the 1976 amendments to the Copyright Act were intended to address. There, Congress overruled by statute Supreme Court decisions that had exempted mere transmitters of signals from the copyright laws. Because transmission of broadcast signals now constitutes performance under the act, the Court held Aereo’s service to be a performance. According to the Court that performance was a public performance under the Act because Aereo communicates the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other. It did not matter to the Court that programs were selected by individual subscribers and that subscribers could receive the same programs at different times and locations.
Justice Scalia, joined by Justices Thomas and Alito, dissented. According to the dissenters, Aereo does not “perform” at all; rather, the subscribers who actually push the “watch” button on Aereo’s website are the “performers.” Thus, while Aereo may still be secondarily liable for inducing or encouraging infringement, Justice Scalia concluded that treating Aereo as a primary infringer distorts the meaning of the Copyright Act.
In concluding his opinion for the Court, Justice Breyer insisted that given the limited nature of its holding, he does not believe the decision will discourage the emergence or use of new technology. But the decision may have farther reaching effects than Justice Breyer assumes. As broadcasters, cable service providers, and Internet service providers become more concentrated and more powerful, the Aereo decision may make it more difficult for alternative online streaming options to develop and effectively compete. The decision will likely strengthen the control that copyright holders have over their audiovisual works and the ways in which those works will be shown (or “performed”) publicly.