Supreme Court to Decide Scope of Broadcasters’ ‘Public Performance’ Right

Author: Brian R. Westley

In a case that could radically transform the broadcast television industry, the Supreme Court will soon address whether a company “publicly performs” a copyrighted television show when it retransmits individual copies of that show to thousands of its subscribers.

The Court recently granted certiorari in ABC, Inc. et al. v. Aereo, Inc. The case pits long-time broadcasters ABC, NBC, CBS and others against upstart Aereo, a company that captures over-the-air broadcasts and then retransmits unique copies to subscribers via individual dime-sized antennas. Aereo subscribers, who request what they want to watch, can view the shows over the Internet in near real-time or later. If the Supreme Court holds that Aereo’s technology is not a violation of the Copyright Act, it will clear the way for other technologies that take advantage of over-the-air broadcasts without paying copyright royalties.

Aereo’s system was designed to comply with the Second Circuit’s Cablevision decision (Cartoon Network v CSC Holdings, 536 F.3d 121 (2d Cir. 2008)). In Cablevision, a cable provider allowed its subscribers to access a “remote DVR” that, when a subscriber pressed “record” on its remote, saved a stream of the channel to a hard drive and allowed the subscriber to access it. Because only the subscriber who requested the DVR to record the program could access it, the Second Circuit held that Cablevision’s system did not violate the copyright owner’s exclusive right to perform the copyrighted work publicly.

Citing Cablevision, the Second Circuit in WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2nd Cir. 2013) affirmed a denial of a preliminary injunction against Aereo. The Court held that, “just as in Cablevision, the potential audience of each Aereo transmission is the single user who requested that a program be recorded.” The dissent found that Aereo’s technology was a “sham” with the sole purpose of circumventing the Copyright Act, observing that under Aereo’s theory, “it may retransmit, for example, the Super Bowl ‘live’ to 50,000 subscribers and yet, because each subscriber has an individual antenna and a ‘unique recorded cop[y]’ of the broadcast, these are ‘private’ performances.” The Supreme Court granted certiorari on January 10, 2014.

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