On June 25, 2014, the U.S. Supreme Court reversed the Second Circuit in American Broadcasters Cos. v. Aereo, finding that Aereo’s service infringed the broadcasters’ public performance rights when it enabled subscribers to record and later replay over-the-air broadcasts.
Aereo offers subscribers access to an automated system that allows users to select and record broadcast television programs for streaming over the Internet at a later date. Essentially, Aereo provides subscribers with an individual, private antenna and DVR which can be controlled by subscribers via the Internet. Subscribers choose which programs to record and when to replay the programs. Aereo’s automated system tunes in and records the subscriber selected programs and replays the programs over the Internet upon receiving subscriber’s commands. Aereo plays no role in the selection of programs to be recorded and replayed at a later date.
Aereo argued that because its subscribers determine which television shows are to be recorded for replay at a later date, Aereo itself engaged in no public performances of copyrighted works. Per Aereo, its service was no different from that of a copy shop (photocopier rental service). Copy shop operators have long been held to be not liable if users of their equipment reproduce copyrighted works. The Court disagreed finding that Aereo, albeit using different technology, provided services more akin to those of a cable television operator. The broadcast or rebroadcast of television shows by a cable television provider has long been held to be a public performance of a copyrighted work.
The end result of the Court’s decision is that Aereo will either have to shut down or obtain licenses from the copyright holders to rebroadcast their content.
