US Performance Rights

A majority of the United States Supreme Court ruled in American Broadcasting Cos. v. Aereo, Inc. that Aereo transmits a performance to the public by sending television signals it receives over the air from individual antennas to subscribers over the internet.

The majority found that the due to the overwhelming “likeness” to the cable companies, the technological differences were not critical. Aereo had individually controlled antennas which received signals over-the-air from broadcasters and transmitted the signals to the subscribers. The majority wrote:

But what about the Clause’s further requirement that Aereo transmit a performance “to the public”? …  The fact that each transmission is to only one subscriber, in Aereo’s view, means that it does not transmit a performance “to the public.”

In terms of the [Copyright] Act’s purposes, these differences do not distinguish Aereo’s system from cable systems, which do perform “publicly.” Viewed in terms of Congress’ regulatory objectives, why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. They do not render Aereo’s commercial objective any different from that of cable companies. …. Congress would as much have intended to protect a copyright holder from the unlicensed activities of Aereo as from those of cable companies.

Justice Scalia, with Justice Thomas and Alito dissented, writing in part:

The Networks sued Aereo for several forms of copyright infringement, but we are here concerned with a single claim: that Aereo violates the Networks’ “exclusive righ[t]”to “perform” their programs “publicly.” 17 U. S. C. §106(4).That claim fails at the very outset because Aereo does not “perform” at all. The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come.

Some commentary on the decision: Wall Street Journal Law Blog, Gizmodo, and AIPLA.