Aereo, Unlicensed Retransmissions, and Emerging Technologies: The Case for Congressional Action

• Author: Sarah E. Claypool
• Position: J.D. Candidate, The University of Iowa College of Law, 2015; B.A., The University of Iowa, 2012
• Pages: 1789-1811

1789

Aereo, Unlicensed Retransmissions, and

Emerging Technologies: The Case for

Congressional Action

Sarah E. Claypool



ABSTRACT: In American Broadcasting Companies v. Aereo, Inc., the

Supreme Court addressed a growing split among lower federal courts

regarding the copyright liability of a business that retransmitted broadcast

television programs to its subscribers for a monthly fee without obtaining a

license or paying royalties. In holding that Aereo violated exclusive public

performance rights, guaranteed to copyright holders by the Copyright Act, the

Court overturned the Second Circuit’s interpretation of the Copyright Act’s

Transmit Clause. The Court’s holding relied on Aereo’s substantial similarity

to cable television to conclude that Aereo’s system “performed” “to the public”

under the Transmit Clause. This Comment argues that the Court’s decision

in Aereo provided little guidance regarding other service providers and could

threaten the development of new technologies. The uncertain state of the law

after Aereo requires action by Congress to provide more guidance. A

comprehensive overhaul of the Copyright Act would best address the problems

in applying the Copyright Act to modern technology, as exemplified by the

Aereo litigation.

 J.D. Candidate, The University of Iowa College of Law, 2015; B.A., The University of

Iowa, 2012. I would like to thank the editors and writers of Volumes 99 and 100 of the Iowa Law

Review for their hard work on this Comment. A special thanks to Zane Umsted, Luke Dawson,

Maureen O’Brien, and Lisa Castillo for their immensely helpful comments and edits. Finally, I

would like to thank my parents, Tom and Becky Claypool, for their unwavering support and

encouragement.

1790 IOWA LAW REVIEW [Vol. 100:1789

I. INTRODUCTION ........................................................................... 1790

II. THE SPLIT AMONG FEDERAL COURTS ......................................... 1791

A. THE COPYRIGHT ACT AND THE PUBLIC PERFORMANCE

RIGHT .................................................................................. 1791

B. THE TRANSMIT CLAUSE ......................................................... 1792

C. AEREO AND UNLICENSED RETRANSMISSIONS OF BROADCAST

TELEVISION ........................................................................... 1793

D. THE SECOND CIRCUIT APPROACH TO THE TRANSMIT

CLAUSE ................................................................................. 1794

E. FEDERAL DISTRICT COURTS’ REJECTION OF THE SECOND CIRCUIT

INTERPRETATION .................................................................. 1796

III. THE AEREO DECISION .................................................................. 1797

A. THE AEREO MAJORITY: AEREO VIOLATES EXCLUSIVE PUBLIC

PERFORMANCE RIGHTS .......................................................... 1798

B. THE AEREO DISSENT: “GUILT BY RESEMBLANCE” ................... 1802

IV. AEREO AND THE FUTURE OF COPYRIGHT LAW ............................. 1803

A. THE AEREO ANALYSIS AND POSSIBLE EFFECTS ON OTHER

TECHNOLOGY ....................................................................... 1804

B. THE CASE FOR CONGRESSIONAL ACTION ................................. 1807

V. CONCLUSION .............................................................................. 1810

I. INTRODUCTION

In American Broadcasting Companies v. Aereo, Inc., (“Aereo”) the Supreme

Court resolved a split among federal courts over whether unlicensed

retransmissions of broadcast television programs over the Internet violated

copyright holders’ exclusive public performance rights.1 Aereo, a television

retransmission business that launched in early 2012 and attracted millions of

dollars in investment, had spread rapidly across the United States and

prompted litigation in several circuits regarding the copyright implications of

its system.2 By holding that Aereo infringed protections guaranteed to

copyright holders, the Supreme Court overturned the Second Circuit’s

interpretation of the Transmit Clause of the Copyright Act.3 The decision was

a death knell to Aereo and other businesses that were built around

1. See generally Am. Broad. Cos. v. Aereo, Inc., 134 S. Ct. 2498 (2014).

2. See WNET, Thirteen v. Aereo, Inc., 712 F.3d 676, 680 (2d Cir. 2013), rev’d, Aereo, 134

S. Ct. 2498. Aereo’s customers pay a monthly fee to receive transmissions of network “broadcast

television programs over the [I]nternet.” Id.

3. Aereo, 134 S. Ct. at 2511 (overturning the Second Circuit’s decision in WNET that Aereo

did not “perform” copyrighted works “publicly” in violation of the Copyright Act).