American Broadcasting Cos. v. Aereo, Inc.

• Author: Tepp, Steven
• Position: Broadcasting public performance rights

TABLE OF CONTENTS I. BACKGROUND A. Fortnightly and Teleprompter B. 1976 Act C. Cablevision II. AEREO A. Operational facts B. Lower Court Litigation III. SUPREME COURT DECISION A. Majority opinion 1. If it walks like a duck and quacks like a duck a. Does Aereo "perform"? b. Is Aereo's performance "public"? 2. Clouded Cablevision B. Dissent IV. CONCLUSION Few things are as central to Americans' lives as their television. But the medium that has for decades been defined by the device on which it has traditionally been viewed is now undergoing a transformation to computers, tablets, and smartphones. Americans want their television programming to be available no matter where, no matter when, and no matter on what device.

Creative industries have responded by addressing that demand with a multitude of licensed services; at least 100 unique platforms for viewing television and full-length films are available in the United States alone. (1) Still, when a service appears that offers another attractive alternative, it will draw viewers--even if its legality is questionable.

Aereo, (2) and its competitor Aereokiller/FilmOn, (3) fit that description. Like iCraveTV and other previous services, Aereo and FilmOn burst onto the scene, offering customers an opportunity to view television programming remotely across the Internet. And like iCraveTV, (4) Aereo did not have permission from either the broadcaster or the copyright owner, and litigation ensued.

Part I of this comment will briefly summarize the legal background against which the Aereo service was engineered. Part II will describe the pertinent design and functions of the Aereo service. Part III will review and analyze the recent decision of the U.S. Supreme Court in American Broadcasting Cos. v. Aereo, Inc., (5) as well as the dissent. (6) The issues presented in this litigation have implications beyond the specific facts of the case, and those issues remain controversial. This comment is intended to provide an even-handed account of the Court's opinions and, while it will note unanswered questions, it does not seek to offer answers to them.

1. BACKGROUND

   The Golden Age of Television of the 1950s must surely seem like the Dark Ages to modern television audiences. Back then, there existed a scant three broadcast networks, (7) supplemented by a handful of low-power local stations, if at all: no ability to record or rewind live broadcasts; no 'on demand' content; no ability to purchase television episodes or movies on videotape, DVD, or download; and reception that depended on each home's location, antenna positioning, weather, and other factors.

   Some towns, isolated from broadcast stations by distance from a broadcast market and/or local topography, found broadcast television signals difficult or impossible to receive. (8) To rectify that shortcoming, in many communities, a single large tower was erected to receive broadcast television signals and transmit them over cables to nearby residences. (9) This "community access television" or "CATV" was the early forerunner of modern cable systems. (10)

   1. Fortnightly and Teleprompter

      These CATV systems posed an interesting copyright question: did they publicly perform the television shows they enabled people to view, thus implicating the Copyright Act--which secures to copyright owners the exclusive right to publicly perform their original creative works? In 1968, the Supreme Court addressed this question when it decided Fortnightly Corp. v. United Artists Television, Inc. (11) The defendant/appellant, Fortnightly Corporation, operated a CATV system that made available copyrighted works to subscribers without licenses from the copyright holders. (12) The plaintiff/appellee, United Artists Television, Inc., was the copyright holder of several of the works that Fortnightly transmitted.

      United Artists' perspective was straightforward: the CATV operator, it argued, was performing its programming--embodied in broadcast signals--without permission. But Fortnightly's perspective was equally straightforward: it claimed it did not "perform" anything, but merely passed along signals of television performances to its subscribers.

      To determine whether Fortnightly "performed" the works it broadcasted, the Court turned to the Copyright Act in force at that time--the 1909 Act, as amended (13)--which provided two relevant exclusive rights: "to play or perform [a nondramatic literary work] ... in public for profit" (14) and "to perform ... publicly if it be a drama...." (15) The Court considered that broadcasters make active choices in selecting and procuring programming and that, as such, broadcasters "perform" works within the meaning of the Act. (16) Viewers, however, are more like the members of a live audience who receive the performance and thus do not "perform" it themselves, the Court reasoned. (17)

      Having established that dividing line, the Court had to determine the side on which CATV fell. Because the Court considered CATV to be a passive retransmitter, compared to the affirmative programming selections made by broadcasters, it rejected the plaintiffs views, essentially finding CATV services amounted to no more than long cables:

      If an individual erected an antenna on a hill, strung a cable to his house, and installed the necessary amplifying equipment, he would not be 'performing' the programs he received on his television set. The result would be no different if several people combined to erect a cooperative antenna for the same purpose. The only difference in the case of CATV is that the antenna system is erected and owned not by its users but by an entrepreneur. (18) A similar case made its way to the Supreme Court a few years later. In Teleprompter Corp. v. Columbia Broadcasting System, Inc., (19) the Court considered whether the public performance analysis under the 1909 Act was any different with regard to a CATV system that facilitated the viewing of television signals so distant that they were not viewable through other antennae in the community. (20) The broadcasters and copyright owners argued that because of new developments in CATV, such as the production by CATV systems of their own original programming and their sale of commercial advertising, cable television had crossed the line over to the broadcaster side of the Court's performance analysis in Fortnightly, (21) Again, the Court was unpersuaded:

      The copyright significance of each of these functions--program origination, sale of commercials, and interconnection--suffers from the same logical flaw: in none of these operations is there any nexus with the defendants' reception and rechanneling of the broadcasters' copyrighted materials. As the Court of Appeals observed with respect to program origination, "[e]ven though the origination service and the reception service are sold as a package to the subscribers, they remain separate and different operations, and we cannot sensibly say that the system becomes a 'performer' of the broadcast programming when it offers both origination and reception services, but remains a nonperformer when it offers only the latter." Similarly, none of the programs accompanying advertisements sold by CATV or carried via an interconnection arrangement among CATV systems involved material copyrighted by the petitioners. (22) While its copyright analysis had driven it to a result contrary to the desires and views of the broadcasters and copyright owners, the Court was not ignorant to the commercial effect of its rulings. However, it was unwilling to impose its own policy judgments on such questions: "Detailed regulation of these relationships, and any ultimate resolution of the many sensitive and important problems in this field, must be left to Congress." (23)

   2. 1976 Act

      Congress did indeed take heed of these cases, and it did not like what it saw. As fate would have it, the long process of comprehensively revising the Copyright Act was at hand, providing an opportune vehicle to address these issues.

      The Copyright Act of 1976, which remains in force as amended, carried forward the exclusive right of public performance "in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.... (24)

      But unlike the 1909 Act, the new law provided a statutory definition of the pivotal terms. To "perform" a works means "to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible." (25)

      This is a broad...