Retransmission in U.S. (Aereo)

On 25 June 2014, the Supreme Court of the United States decided in a case brought by a group of broadcasters against the operator of s distribution platform (Aereo). Aereo connects its subscribers to small individual antennas which are capable of receiving free over-the-air broadcast channels. The signals thus captured are simultaneously (with a small delay caused by proxy-caching) delivered to the subscribers on the basis of the Internet Protocol. Aereo did not ask the broadcasters and other rights owners for permission, as Aereo took the position that it did not itself “transmit or otherwise communicate a performance…of the [copyrighted] work…to the public”.

The Supreme Court, however, took the position that “these ‘behind-the-scenes’ technological differences do not distinguish Aereo’s system from cable systems, which do perform publicly”. Consequently, Aereo will need to obtain the permission from the broadcasters whose channels it delivers to its subscribers and of all other rightsholders; in practice, this means that Aereo will have to pay a licence fee to the rightsholders.

The decision contains important decisions on relevant definitions: What constitutes a ‘perfomance’? What constitutes a ‘public’.

In a dissenting opinion, Justice Scalia (joint by Justice Thomas and Justice Alito) takes the position that Aereo does not perform at all and that the Court’s majority “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”.

AMERICAN BROADCASTING COS., INC. ET AL v. AEREO, INC., FKA BAMBOOM LABS, INC., No. 13-461, 25 June 2014 (pdf).

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