ABC, Inc. v. Aereo, Inc.
573 U.S. 431 (2014)
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Rule of Law:
A company that captures copyrighted television programs and transmits them over the internet to paid subscribers engages in a public performance under the Copyright Act, even if it uses a system of individual antennas and temporary, user-specific copies.
Facts:
- Aereo, Inc. offered a subscription service allowing customers to watch broadcast television programming over the Internet for a monthly fee.
- When a subscriber selected a program to watch, Aereo's system assigned a unique, dime-sized antenna to that user for the duration of the program.
- The dedicated antenna received the over-the-air broadcast signals for the selected program.
- Aereo's system then created a subscriber-specific copy of the program on its hard drives from the signals received by the user's dedicated antenna.
- The system began streaming this personal copy over the internet to the subscriber's device a few seconds after the program was broadcast live.
- If two subscribers chose the same program, Aereo's system used two separate antennas, created two distinct copies, and sent two separate transmissions.
- Aereo did not hold licenses from the copyright owners (the broadcasters) to transmit their programs.
Procedural Posture:
- A group of television producers, broadcasters, and other copyright owners sued Aereo, Inc. in the U.S. District Court for the Southern District of New York for copyright infringement.
- The plaintiffs sought a preliminary injunction to stop Aereo from operating its service.
- The district court (the court of first instance) denied the plaintiffs' motion for a preliminary injunction.
- The plaintiffs, as appellants, appealed the denial to the U.S. Court of Appeals for the Second Circuit.
- A divided panel of the Second Circuit, the intermediate appellate court, affirmed the district court's decision, finding that Aereo did not perform 'publicly'.
- The Second Circuit denied a petition for rehearing en banc.
- The plaintiffs, now as petitioners, successfully sought a writ of certiorari from the U.S. Supreme Court.
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Issue:
Does a company publicly perform a copyrighted work within the meaning of the Copyright Act's Transmit Clause when it sells a service that allows subscribers to watch television programs over the Internet at about the same time as the programs are broadcast over the air, using a system of thousands of tiny antennas dedicated to individual subscribers?
Opinions:
Majority - Justice Breyer
Yes. A company publicly performs a copyrighted work when it provides a service like Aereo's. The court's reasoning is rooted in the legislative history of the 1976 Copyright Act, which was specifically amended to overturn prior Supreme Court decisions (Fortnightly and Teleprompter) that had exempted community antenna television (CATV) systems from copyright liability. The court found Aereo's service to be 'overwhelmingly like' the CATV systems Congress intended to regulate. Both Aereo and CATV systems capture broadcast signals and retransmit them to paying subscribers. The technological differences—such as Aereo's use of individual antennas and user-specific copies—are not legally significant because they are 'behind-the-scenes' details that do not change the fundamental nature of the service or the viewing experience. Therefore, Aereo 'performs' the works, and because it transmits the same works to a large, unrelated audience of paying subscribers, it does so 'publicly' within the meaning of the Transmit Clause.
Dissenting - Justice Scalia
No. Aereo does not 'perform' at all, and therefore cannot be held directly liable for copyright infringement. Direct infringement requires a volitional act by the defendant directed at the copyrighted content. In this case, it is the subscriber, not Aereo, who makes the choice of what content to watch. Aereo's automated system is passive and user-controlled, merely providing equipment that responds to user commands, much like a copy shop or a VCR manufacturer. The majority improperly disregards this established volitional conduct rule and invents an ad hoc 'looks-like-cable-TV' standard based on legislative history, which will create significant legal uncertainty for future technologies. The proper analysis should distinguish between the party that selects the content (the performer) and the party that merely provides the automated tools.
Analysis:
This decision established a functional, substance-over-form approach to the public performance right, signaling that courts will scrutinize technological designs aimed at circumventing copyright law. By finding Aereo's service analogous to cable television, the Supreme Court prioritized the legislative intent behind the 1976 Copyright Act over technical distinctions. The ruling created uncertainty for other technology companies, particularly in the cloud computing and remote DVR sectors, as the 'looks-like-cable' analysis lacks a clear, predictable standard. The case serves as a major precedent reinforcing that services retransmitting broadcast content to the public for a fee are likely to be found infringing, regardless of their underlying architecture.
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