ArticlesVolume 38, No. 2 (2015)

We (Still) Need to Talk About Aereo: New Controversies and Unresolved Questions After the Supreme Court’s Decision

Jane C. Ginsburg1,

Rebecca Giblin2

1 Morton L. Janklow Professor of Literary and Artistic Property Law, Columbia Law School,
2 Associate Professor, Faculty of Law, Monash University. ARC Future Fellow, CREATe Fellow.

Recent judicial interpretations of U.S. copyright law have prompted businesses to design technologies in ways that enable the making and transmission of copies of works to consumers while falling outside the scope of the owner’s exclusive rights. The archetypal example was Aereo, Inc.’s system for providing online access to broadcast television. Aereo allowed users to tune into individual antennae to stream near-live TV to themselves, online. If this activity fell within the scope of the exclusive right of public performance, then it required the permission of right holders. The “Transmit Clause” of the U.S. Copyright Act’s definition of “to perform publicly” brings within the scope of the public performance right: [T]ransmitting or otherwise communicating a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. Holdings from the Second Circuit that the relevant performance was the specific transmission from each copy, and that those performances could not be public if made to only a single user, gave Aereo a blueprint for avoiding liability. It took up the invitation by designing a system incorporating thousands of dime-sized antennas. By temporarily assigning one to each user, from which she could access only the signals she could freely pick up from her own rooftop, Aereo’s service enabled individual copies to be made of each program and then transmitted on request to the user. Since each transmission was directed only to the single requesting user, Aereo argued it could not be considered made “to the public.”