ABC, Inc. v. Aereo, Inc.

PETITIONER: American Broadcasting Corporation, Inc., et al.
LOCATION: United States District Court for the Southern District of New York

DOCKET NO.: 13-461
DECIDED BY: Roberts Court (2010-2016)

CITATION: 573 US (2014)
GRANTED: Jan 10, 2014
ARGUED: Apr 22, 2014
DECIDED: Jun 25, 2014

Facts of the case

Aereo, Inc. (Aereo) provides a service that allows its subscribers to watch programs that are currently airing on network television or record programs that will air in the future over the Internet. By allowing subscribers to watch live television as well as record and watch shows on Internet-enabled devices including mobile phones, Aereo serves three functions: that of a regular television antenna, a recording device, and an application that makes these services work on devices other than televisions and computers. Aereo is currently only available to subscribers in the New York City area and offers only New York City local channels. Aereo does not have a license from the copyright holders of the programs to record or transmit their programs.

Two groups of plaintiffs filed separate copyright infringement suits against Aereo and moved for a preliminary injunction to prevent Aereo from transmitting programs to its subscribers while the programs were still being broadcast. The plaintiffs claimed that the transmission of the programs violated their right to "publicly perform" their copyrighted works. The district court denied the motion and held that Aereo's system was not substantially different from another that had been determined non-violative of the rights of copyright holders and that, while the injunction might prevent harm for the plaintiffs' businesses, it would irreparably harm Aereo's. The U.S. Court of Appeals for the Second Circuit affirmed the lower court's ruling to deny the motion.


Does a company "publicly perform" a copyrighted television program when it transmits the program to paid subscribers over the Internet?

Media for ABC, Inc. v. Aereo, Inc.

Audio Transcription for Oral Argument - April 22, 2014 in ABC, Inc. v. Aereo, Inc.

Audio Transcription for Opinion Announcement - June 25, 2014 in ABC, Inc. v. Aereo, Inc.

Now, the second case which is also somewhat technical is called American Broadcasting Company v. Aereo.

Now Aereo offers subscribers a method for watching local broadcast television programming over the internet virtually at the same time the programs are broadcast over the year.

If you are a subscriber here's what you do, you go to the website, you scroll through a schedule of local offerings and you click on the show you want to watch.

Aereo system then plays the show for the subscriber to watch on the computer, an iPhone or any other interconnected device.

Now the question in this case is whether Aereo can show copyrighted broadcast programs to the public in this way without obtaining a license from the copyright holders.

Several networks hold copyrights in these programs and they brought this lawsuit.

They say that Aereo cannot do this.

It has to obtain their permission.

Aereo thinks it can do this.

The Court of Appeals agreed with Aereo but we agree with the networks.

The relevant statutory provision gives copyright owners the exclusive right to “perform” their copyrighted works “publically.”

Then it defines the phrase to perform publically in an expansive way as including some activities that an ordinary person might normally think or not think of this performing such as and this is “transmit transmitting” a performance of the copyrighted work to the public.

And it's that latter definition contained in what's called the Transmit Clause that's primarily at issue here.

Does Aereo “transmit” a performance of a copyrighted work to the public?

If so, Aereo has to obtain a license and that means probably pay the copyright holder.

Now to understand Aereo's argument that it does not transmit to the public, you have to know a little bit more about Aereo's system, a technical part of the system.

It works like this.

Aereo has a central warehouse where it keeps thousands of dime-sized antennas.

When a subscriber selects a show to watch, the system assigns one of those antennas to that subscriber and to no one else.

That antenna then picks up a broadcast and then Aereo's system makes and saves one copy of the program.

Once it records several seconds of the program, the system begins to stream the program using the personalized copy to the subscriber over the internet.

If two subscribers want to watch the same program, for example, at the same time, the system does not use this to transmit to both rather it does the same whole thing all over again, this time using a different antenna and a different personalized copy.

Now tha's Aereo makes a tremendous difference.

It first points out that the system does not, in a sense, it doesn't turn on until the subscriber selects a program that he wants to watch.

It doesn't play any shows for any user until the user directs it to do so.

And that in context as Aereo means that it, Aereo, transmits nothing.

It is only the subscriber who transmits the program.

Aereo just makes its equipment available to the subscriber.

Well, we think that this argument makes two fine a point.

When Congress amended the Copyright Act in 1976 and put in this Transmit Clause, it did so in order to make certain that activities of a CATV system, that is at that time which some can remember, cable companies that pick up signals from the air and send them through your television set.