This article scrutinizes the many troubling errors made by the
United States Supreme Court in its decision in American Broadcasting
Companies Inc v Aereo Inc. Aereo’s streaming television service allowed
subscribers to watch broadcast television on a computer, tablet, or smartphone
without requiring them to be directly connected to cable, satellite, or a local
antenna. Aereo’s system was designed to comply with existing copyright law
by using thousands of antennas, each of which was designated for only one
subscriber at a time. Aereo was sued for copyright infringement by a number
of leading television broadcasters. The United States Supreme Court, over a
heated Scalia dissent, concluded that Aereo was “highly similar” to a cable
company, and that it therefore made “public performances” falling within
the plaintiffs’ exclusive rights. Because the Aereodecision was unnecessary,
unsound, and unwise, this article proposes steps that should be taken in order
to avoid frustrating the development of beneficial “cloud” computing services.
For more than 300 years, copyright and technology have engaged in a fencing
match, a never-ending “thrust and parry”, each challenging and changing the other.
The Statute of Anne, passed in 1710,
was the delayed result of the 15th-century
Throughout copyright’s history, technological innovations such
as photography, player pianos, and sound recordings have prompted changes to
copyright at an ever-increasing pace.
More recently, law has quickened its reaction to technology. In the 1970s, the United States Supreme Court tried to address
fair use and photocopying, but split 4-4.
In the 1980s, the Court again broached
technology after Sony’s “Betamax” videocassette recorder (VCR) triggered suit.
More recently, the Court held that Grokster’s peer-to-peer file-sharing technology
may be unlawful “inducement” of infringement.7
It would seem that as the pace of
new technology quickens, so do legal responses.
A contemporary example of a quick response to new technology may be
found in the Supreme Court’s decision in American Broadcasting Companies Inc
v Aereo Inc.
Aereo allowed subscribers to watch over-the-air television broadcasts
on devices such as smartphones, tablets, or computers. To comply with existing
appellate case law, Aereo designed its service so that each subscriber’s television
feed was tied to a separate dime-sized antenna and separately allocated hard drive
storage space. Aereo designed its service in this rather strange way in order to
provide individual, user-initiated transmissions in order to avoid liability under
applicable copyright law. Unsurprisingly, major broadcasters and copyright owners
filed several copyright suits against Aereo on the same day in federal court in
Aereo later countered that “designing technologies to comply with the
copyright laws is precisely what companies should do”.