Case Study of: Am. Broad. Cos. v. Aereo, Inc., 573 U.S. ___ (2014)


The parties involved were Am. Broad. Cos versus Aereo, Inc.

Aereo Inc. is a new company that allows a user to stream broadcast television programming over the Internet through a user’s phone or other Internet-connected devices; however, most of the programming is made up of copyrighted material which Aereo neither owns the copyright to those materials nor holds a license from the copyright owners to perform those materials publicly. A user pays a monthly subscription for the service to get a personal dime-sized antenna and hard drive that they can use for their own personal viewing (and for them alone), but with Aereo, it’s all in-house. Even though you get a “personal” antenna, it stays with the company plugged into their servers. The system works like this: First, when a subscriber wants to watch a show that is currently being broadcast, he visits Aereo’s website and selects, from a list of the local programming, the show he wishes to see. While the show is being broadcasted, it also saves a “personal” copy of the program of choice. While Aereo saves a copy for later viewing on its service, the court is only looking at how Aereo broadcasts shows, as they happen, to their subscribers, a mere few seconds behind the over-the-air broadcast, until the subscriber has received the entire show. In summary: When two subscribers wish to watch the same program, Aereo’s system activates two separate antennas and saves two separate copies of the program in two separate folders. It then streams the show to the subscribers through two separate transmissions—each from the subscriber’s personal copy and so forth with other subscribers.

Aereo was steadily growing in popularity even though with a $12.99 monthly fee, it had 80,000 users at the time. The owners (ABC, CBS, NBC, and Fox) of program copyrights unsuccessfully sought a preliminary injunction, arguing that Aereo was infringing their right to “perform” their copyrighted works “publicly.” The Second Circuit affirmed the ruling.”


The question laid upon the court: does a company “publicly perform” a copyrighted television program when it transmits the program to paid subscribers over the Internet?

Rule of Law:

The rule of law is that when an entity communicates the same perceptible images and sounds to multiple people at the same time, it has transmitted a performance to the public within the meaning of The Copyright Act of 1976 and may be held liable for infringing a copyright.

Justice Breyer delivered the opinion referring to The Copyright Act of 1976 which gives a copyright owner the “exclusive righ[t]” to “perform the copyrighted work publicly,” 17 U.S.C. 106(4), including the right to “transmit or otherwise communicate … 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,” section 101, also referring to The Act’s Transmit Clause. Breyer wrote while similar to CATV, CATV simply carries programs without editing, whatever programs they receive. Like Aereo, broadcasters procure programs and propagate them to the public. The Court drew a line: “Broadcasters perform. Viewers do not perform.” The also stated that whatever the process of the transmitted performance is, they are still transmitting programs to their subscribers who constitute the public. Justice Scalia wrote in the dissent opinion that “It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other innovations in the past. But it is not our job to apply laws that have not yet been written. …” 464 U. S., at 456.

The majority of decisions were 6 votes for Am. Broad. Cos. by Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan; while 3 were against Am. Broad. Cos. by Scalia, Thomas, and Alito.

Key Quote and Precedent:

“In sum, having considered the details of Aereo’s practices, we find them highly similar to those of the CATV systems in Fortnightly and Teleprompter. And those are activities that the 1976 amendments sought to bring within the scope of the Copyright Act. Insofar as there are differences, those differences concern not the nature of the service that Aereo provides so much as the technological manner in which it provides the service. We conclude that those differences are not adequate to place Aereo’s activities outside the scope of the Act” Justice Breyer wrote in the opinion.

“One of Congress’ primary purposes in amending the Copyright Act in 1976 was to overturn this Court’s holdings that the activities of community antenna television (CATV) providers fell outside the Act’s scope. In Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390, the Court determined that a CATV provider was more like a viewer than a broadcaster, because its system “no more than enhances the viewer’s capacity to receive the broadcaster’s signals [by] provid[ing] a well-located antenna with an efficient connection to the viewer’s television set.” Id., at 399,” Justice Breyer wrote in the opinion.

My Opinion:

I my own opinion, I would agree with Justice Scalia in stating that it’s not the job of the Supreme Court of the United States to make up new laws on technology or even speak on its behalf without any laws. They first need to understand how the systems work, because as of today, we can now stream what we want, whenever we want, and even live games, shows, or other “performances.” They are basing all of this on The Copyright Act of 1976, which is 38 years old, and as far as technology, that’s old.

On the other side, Aereo was essentially stealing the big media’s viewership, and big media was not compensated at all for it … until they won. It’s defiantly a compelling case as I’m looking through it with my 21-year-old eyes because I’m just so used to these technologies, how they work, why they do what they do, and what I thought might constitute as “fair use” and legal may be deeper than I initially thought.


A 1st Amendment assessment from my COMS 400 Communication Law and Ethics class at Radford University. This is 9 of 10.


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