Supreme Court Determines Internet Service Violates CopyrightsJune 26, 2014

The Supreme Court has issued its much anticipateddecision in American Broadcasting Co., Inc. v. Aereo, Inc. The Court held that an internet service provided by Aereo—which allows subscribes to watch television programs over the internet contemporaneous with the programs as they are broadcasted over the air—violates of a copyright owner's exclusive right to perform a work publicly under the 1976 Copyright Act. This decision represents an interesting historical development in copyright law.

Amendment of the Copyright Act in 1976 was motivated, at least in part, in response to previous court decisions relating to systems very similar to the one at issue in Aereo. Specifically, in the 1968 case Fortnight Corp. v. United Artists Television and in the 1974 case Teleprompter Corp. v. Columbia Broadcasting System, Inc. the Supreme Court held operations such as reception and rechanneling of broadcast TV signals for simultaneous viewing to be "viewer functions," and not within the purview of the public performance right. The 1976 Copyright Act subsequently clarified that to "'perform' an audiovisual work means 'to show its images in any sequence or to make the sounds accompanying it audible.'" Thus, under the 1976 Copyright Act, services that allow subscribers to view television shows contemporaneous or nearly contemporaneous with the broadcasting constitute a performance.

Aereo argued that rather than performing the work in violation of the Copyright Act, it is merely an "equipment provider." The Supreme Court did acknowledge a technological difference between Aereo's services and the services at issue in Fortnight Corp. and Teleprompter—Aereo's service is "inert" until a subscriber chooses a program, whereas with the cable systems in Fortnight Corp. and Teleprompter transmitted constantly. However, the Court was not persuaded that this difference mattered, and notably also found Aereo subscribers to constitute "the public" under the Act.

Also notable was the statement by the Court, in the body of the decision, that it does not believe this decision will discourage the emergence or use of different technologies. This seems to signal the Court's understanding that as technology continues to advance, while the Copyright Act remains the same, it will be increasingly important for courts to ensure that the Act does not tread on innovation and artistic creation, but rather to promote their progress as required by Article I, Section 8, Clause 8 of the United States Constitution.

The full opinion is availablehere.