The Wrong Decision at the Right Time: How Aereo and its Aftermath Exposed the Need for Change in the Copyright Act

• Author: Alexis V. Preskar
• Position: J.D., summa cum laude, Capital University Law School; B.A. in Journalism, cum laude, May 2013, The Ohio State University. I owe endless gratitude to Professors Susan Gilles and Stephen Grant for their expertise and encouragement. Thank you to my parents for motivating me to always do my best and fostering all of my creative pursuits, and to ...
• Pages: 755-787

THE WRONG DECISION AT THE RIGHT TIME:

HOW AEREO AND ITS AFTERMATH EXPOSED

THE NEED FOR CHANGE IN THE COPYRIGHT ACT

ALEXIS V. PRESKAR*

I. INTRODUCTION

Television, for better or for worse, is America’s sweetheart.1 Although

traditional television has continually withstood the onslaught of new

technologies and remains the top choice for media consumption, it has faced

stiffer competition in recent years because of the prevalence of portable

devices.2 And even though there are only twenty-four hours in a day,

companies and Americans alike are trying to figure out how to squeeze in as

much time as possible with these new devices.3 Yet despite our love for

screen time,4 many viewers may not understand the differences between the

Copyright © 2016 Alexis V. Preskar.

* J.D., summa cum laude, Capital University Law School; B.A. in Journalism, cum laude,

May 2013, The Ohio State University. I owe endless gratitude to Professors Susan Gilles and

Stephen Grant for their expertise and encouragement. Thank you to my parents for

motivating me to always do my best and fostering all of my creative pursuits, and to Jacob

for his patience always, but especially in this writing process.

1 See NIELSEN, The Total Audience Report (Dec. 3, 2014), http://www.nielsen.com

/us/en/insights/reports/2014/the-total-audience-report.html [hereinafter NIELSEN, The Total

Audience Report] (noting that because of the limited numbers of hours in a day, video

consumption can increase only finitely, but content is still key for consumers and is being

accessed by more online mediums). See also NIELSEN, Shifts in Viewing: The Cross-Platform

Report Q2 2014 (Sept. 8, 2014), http://www.nielsen.com/us/en/insights/reports/2014/shifts-

in-viewing-the-cross-platform-report-q2-2014.html [hereinafter NIELSEN, Shifts in Viewing].

Although younger viewers (ages 18–34) are increasing th eir screen time overall, the use of

digital devices is increasing across all age groups (ranging from 18–64). Id. In fact, older

generations took more to digital devices between the second quarter of 2013 to the second

quarter of 2014, increasing their use from 60 to 80%. Id. Even though the time spent viewing

media on television decreased over all demographics, television still dominates how

Americans access media. See id.

2 See NIELSEN, The Total Audience Report, supra note 1.

3 See NIELSEN, Shifts in Viewing, supra note 1.

4 In 2013, the average American spent over five hours per day using digital media, while

television use accounted for about four and a half hours per day. Digital Set to Surpass TV

in Time Spent with US Media: Mobile Helps Pro pel Digital Time Spent, EMARKETER (Aug.

(continued)

756 CAPITAL UNIVERSITY LAW REVIEW [44:755

forms of television they watch: broadcast and cable.5 This distinction is

becoming more significant in both intellectual property and communications

law as new technologies emerge and test the limits of existing law.6 Even

more importantly, these legal battles reflect new ways typical media

consumers receive content, and the combination of these cases with the

potential changing front of media consumption could soon change the face

of traditional television.7 This Note looks at the relationship between

broadcast and cable, the repercussions of ABC, Inc. v. Aereo, Inc.8 and its

effect on how Americans watch television, and what Congress should do

about it.

II. BACKGROUND

A. A Brief History of the Broadcast, Ca ble, and Copyright Relationship

Although there are many rules and regulations covering cable providers,

this section will focus on why cable providers are required to provide

broadcast signals, and it will briefly look at the compulsory licensing system

of the Copyright Act with respect to cable and broadcast.

The Communications Act of 1934 requires cable providers to seek

consent from broadcasters before retransmitting broadcast signals.9 The

broadcast station may require a fee for the retransmission.10 However, the

1, 2013), http://www.emarketer.com/Article/Digital-Set-Surpass-TV-Time-Spent-with-US-

Media/1010096#sthash.kMeLQKsT.dpuf.

5 See Paul Rodriquez, Broa dcast, Cable . . . What’s the Difference? NCTA PLATFORM

(Nov. 12, 2008), https://www.ncta.com/platform/cable-programming/broadcast-cable-

whats-the-difference.

6 See, e.g., ABC, Inc. v. Aereo, Inc., 134 S. Ct. 2498, 2503 (2014).

7 See EMARKETER, supra note 4.

8 Aereo, 134 S. Ct. 2498.

9 Communications Act of 1934, 47 U.S.C. § 325(a) (2012). See also Cable Ca rriage of

Broadcast Stations, FCC, h ttp://www.fcc.gov/guides/cable-carriage-broadcast-stations (last

updated Aug. 15, 2013).

Since 1934, broadcast stations that use the programming of other

broadcast stations have been required to obtain the prior consent of the

originating station. This requirement was made applicable to cable

systems because the absence of this requirement was distorting the video

marketplace and threatening the future of over-the-air television

broadcasting.

Id.

10 FCC, supra note 9. (continued)

2016] AEREO AND ITS AFTERMATH 757

Communications Act also contains a “must-carry” provision.11 This means

that cable operators must carry “the signals of local commercial television

stations,”12 and, if a broadcaster enforces its must-carry rights, it cannot also

demand payment.13

In line with the must-carry provision, the 1976 Copyright Act provides

a compulsory license to cable systems to transmit broadcast programming

without imposing liability for copyright infringement.14 Together, these

statutory provisions create a system which allows cable providers to

retransmit broadcasters’ signals without infringing on the broadcasters’

copyrights.15 This complementary system makes sense because it would be

contradictory to charge cable operators with infringement under the

Copyright Act for what the Communications Act requires.

B. Direct Liability for Content Providers Under the 1909 Copyright Act

The United States Supreme Court has long had to deal with direct

liability for service providers16 in the face of new technology.17 For

example, in some areas such as West Virginia, it was difficult for individuals

to catch over-the-air broadcast signals with their own equipment because of

the mountainous terrain.18 As a solution, companies erected one large

antenna to collect the signals, which were then sent to individual homes.19

This Community Access Television (CATV) system came under fire from

11 47 U.S.C. § 534(a); FCC, supra note 9.

12 § 534(a).

13 Id. § 534(b)(10); FCC, supra note 9.

14 See Copyright Act o f 1976, 17 U.S.C. § 111(c) (2012). The retransmission of this

programming is referred to as a “secondary transmission” in the Copyright Act. See id. The

secondary transmissions are the broadcast signals (which cable operators are required to

carry) and the primary transmission is the cable signal. See id.

15 See id.; 47 U.S.C. § 534(a).

16 For the purposes of this Note, a service p rovider is an entity that does not transmit

original programming, but solely collects and retransmits signals from broadcasters to

consumers. Part II discusses this “collection and retransmission,” which often constitutes a

performance under the Copyright Act and can be infringing if done without the p ermission

of the broadcaster.

17 See, e.g., Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 395 –96

(1968).

18 Id. at 391; see Evolution of Cable Television, FCC, http://www.fcc.gov/encyclopedia

/evolution-cable-television (last updated Mar. 13, 2012).

19 Fortnightly, 392 U.S. at 392; see Evolution of Cable Television, supra note 18.

(continued)