Aereo Publicly Performs and Infringes Copyrighted Works

Aereo’s network receives broadcast television programming through thousands of dime-sized antennas. Aereo makes that programming available to subscribers by streaming the programming over the Internet.  Each subscriber is assigned a dedicated antenna that is not available to any other subscriber for the duration of the selected program.  A personal copy of the selected program is made for each subscriber.  Only the subscriber can access her personal copy.  When the broadcast companies sued Aereo for copyright infringement, the district court denied the broadcasters’ motion for a preliminary injunction.  The Second Circuit affirmed, ruling that Aereo does not publicly perform the transmitted works because the stream to the subscriber is a private transmission.  Read more about the Second Circuit’s decision in my post Unauthorized Streaming of Television Broadcasts Not Infringing.

Copyright owners have the exclusive right to publicly perform the works that they own.  The U.S. Supreme Court majority saw this case as reducing down to two questions:  “First, in operating in the manner described above, does Aereo ‘perform’ at all? And second, if so, does Aereo do so ‘publicly’?” (Opinion pdf page 8).  The Court ruled that Aereo’s activities are both a performance and a public performance.  Aereo infringes by violating the copyright owners’ exclusive right of public performance.

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Unauthorized Streaming of Television Broadcasts Not Infringing

Aereo, Inc., charges a monthly fee for subscribers to watch broadcast television programs over the Internet.  Aereo’s service is currently available only in New York City.  Aereo picks up the broadcast signals using thousands of small antennas, each about the size of a dime.  Aereo assigns an antenna to an individual user, so that only one user uses a particular antenna at a time.  Users can record a program and/or watch the program, which is delayed just a few seconds compared to the broadcast.  A user’s individual directory is created on a hard drive at Aereo’s facility using the signal received through the antenna assigned to that user.  Each user views her individual copy of a program.  Copies created at the request of one user cannot be shared with other users.

The owners of copyrights for programs broadcast on network television sued Aereo for copyright infringement, alleging infringement of their right of public performance.  The copyright owners sought a preliminary injunction against Aereo.  The district court denied the motion, ruling that the Second Circuit’s opinion in Cartoon Network LP, LLLP v. CSC Holdings, Inc., (Cablevision) precluded a ruling in favor of the copyright owners.  The copyright owners appealed the denial of the preliminary injunction to the Second Circuit.  The Second Circuit affirmed the district court’s decision and agreed that Cablevision’s ruling controls in this case.  “Aereo’s transmissions are not public performances.”  (Opinion pdf page 33).  Infringement of the copyright owners’ other exclusive rights, such as reproduction and distribution, was not before the court because the copyright owners based their motion for a preliminary injunction on only the public performance right.

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