In one corner stood the leading US television broadcast companies together; and in the other opposite corner facing them alone was Aereo, a well-funded startup company that was offering paid subscribers the ability to watch broadcast television in almost-real time over their internet-connected devices. Because Aereo did not get permission from – or pay royalties to – the broadcast networks, the broadcasters sued it for copyright infringement. On appeal from the US Court of Appeals in the Second Circuit, which had held in favor of Aereo and against the broadcast networks, the US Supreme Court ruled last month against Aereo and for the networks.
Looking at what the recent Aereo ruling represents for copyright-holders and TV viewers alike, attorney Lois Wasoff reviews the SCOTUS decision and the legal framework within which the case was decided, including the old Supreme Court CATV cases, Sony and Cablevision, and specific provisions of the Copyright Act, especially the Transmit Clause.
“The interest in the outcome of the Aereo case went far beyond the parties named in the litigation, yet the question before the Supreme Court was specific and somewhat narrow,” Wasoff explains in a Copyright Clearance Center recording from a recent OnCopyright webinar. “The Court was asked to decide whether the retransmission of a copyrighted television broadcast over the Internet to paid subscribers was a “public performance” – a question that is significant because the right to ‘publicly perform’ a work is one of the exclusive rights of a copyright owner.
“I think Aereo must have expected to be sued. Its major investor, Barry Diller, has enormous experience in broadcasting,” she tells CCC’s Chris Kenneally. “Aereo had some strong arguments to make in defense of its service, and it had made real efforts to comply with what it apparently believed to be the law. The stakes were very high for both sides.”
Lois F. Wasoff has established a legal and consulting practice specializing in copyright and trademark matters, with a particular focus on issues related to publishing. Her particular areas of expertise include copyright law and policy and contractual, legal and business issues related to the development and distribution of content in traditional and electronic media for the trade, educational and professional markets. Lois served as a member of the Section 108 Study Group and is a past Chairman of the Copyright Committee of the Association of American Publishers, a Trustee and a member of the Executive Committee of the Copyright Society of the USA, and the former chair of the Copyright Society’s New England Chapter.