Aereo’s case for its Internet-based television rebroadcasting services has been defeated in the nation’s highest court.
In a ruling announced by the U.S. Supreme Court on June 25, the services of the network programming rebroadcaster Aereo have been declared illegal nationwide.
In March of this year we discussed a major legal defeat for the Long Island, N.Y. based company in the 10th Circuit Court of Appeals. The judge in this case deemed the use of Aereo’s tiny antennae, which allow users to save network television programs on cloud storage and to view these programs at will on their computers and other Internet-ready devices, a legal infringement on the rights of network broadcasters and the programs’ copyright holders.
Now, the Supreme Court has backed up that same decision, effectively censoring Aereo across the country.
An article on the decision posted at techcrunch.com informs readers that the 6-3 Supreme Court decision against Aereo will likely mean the end of the tech startup, and mark a victory for television networks such as FOX, ABC, NBC, and CBS. The ruling also has considerable implications for the ongoing debate between network programming providers and the nation’s cable television companies.
In his decision, Supreme Court Justice Stephen Breyer explained the crux of the argument against Aereo. “The essence of the Aereo ruling,” Breyer wrote, “is that Aereo is equivalent to a cable company, not merely an equipment provider.”
As discussed in a previous article here at Pippenger Hedberg Law, the central legal question involved in this case is whether individuals who use an Aereo antenna to watch and store network programming are engaged in viewing a private or public performance. Because many of Aereo’s users stream content in real-time and watch it at more or less the same time as it is originally broadcast, they are watching a signal that could be considered “public,” goes the argument.
Aereo, however, has contended that its users are really just renting a television antenna from them, one that allows them to watch from among about 30 channels or so, depending on the geographical location of the user. In addition, its monthly fee allowed users the cloud storage necessary to save hours of programming that can be accessed and viewed when and where the user sees fit.
This system has led judges to see Aereo as similar to a more traditional cable television service. More importantly, the decision against Aereo almost directly overrules that of a controversial 2007 Cablevision case, Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121. This case considered the copyright infringement status of content saved on DVR (Digital Video Recorder) services. The court’s ruling at the time deemed video content stored by DVR in either a physical box or in the cloud and viewed at a later time as allowable, and that it did not constitute a public performance of the material.
The new ruling against Aereo, however, contradicts the decision in the Cablevision case by considering DVR program viewings not as individual and private, but as an aggregated, “public” performance. Thus, as the author of the techcrunch.com article explains, the Supreme Court decision here reinterprets public performance in a way that is unfavorable to Aereo and the cable companies that provide cloud DVR storage. Aggregated individual viewings of the same program thus become public performances. Looking at it this way, Aereo’s service manages to run afoul of the Transmit Clause of the Copyright Act, which defines displaying a work publicly as, "to transmit ... a performance ... to the public, by means of any device or process, whether ... the public ... receive[s] it in the same place or in separate places and at the same time or at different times."
In the wake of the decision, Aereo has suspended it services, stating on its website Aereo.com that it will refund its users’ last month of payment. In keeping with the position that it has held throughout this debate, Aereo’s public statement also declares, “The spectrum that the broadcasters use to transmit over the air programming belongs to the American public and we believe you should have a right to access that live programming whether your antenna sits on the roof of your home, on top of your television or in the cloud.”
The broader implications of rebroadcasting material under copyright and the sticky question of what constitutes an individual versus a public performance in the Internet age assure that this decision will likely continue to be regarded as an important one.