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December 2014
326-559
  • Aereo’s Errors

    Ira Steven Nathenson
Abstract

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.

Keywords
Copyright; intellectual property; infringement; public performance; transmission; technology; cloud computing; television; broadcast; streaming; internet; certiorari; United States Supreme Court.
Introduction

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 printing press. 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 New York. Aereo later countered that “designing technologies to comply with the copyright laws is precisely what companies should do”.