By Timothy Murphy. Co-chair of our Patent Practice Group
Last week the Supreme Court decided, in American Broadcasting Companies, Inc. v. Aereo, Inc., that Aereo was infringing the copyrights of the television broadcasters. This decision was not a surprise in light of the comments of the justices during the April oral argument, which I discussed in “How Will the Supreme Court Decide the Aereo Case?” The court voted 6-3 with Roberts, Kennedy, Ginsburg, Sotomayor and Kagan joining Breyer’s decision in favor of the broadcasters, and Thomas and Alito joining Scalia’s dissent.
Aereo used arrays of small antennas to pick up over-the-air television shows and make them available to Aereo customers. Each customer was assigned a separate antenna. Aereo also allowed its customers to record television shows and save them in a cloud storage dedicated to that customer. For this service, Aereo charged $8 a month. Prior appellate court cases had ruled that cable companies providing such individualized remote storage and playback systems did not infringe the copyright of the content owners. Aereo undoubtedly hoped that this line of thinking would apply to its individualized antennae. ABC and other over-the-air content providers hoped otherwise and sued to enjoin Aereo’s service.
The majority recognized that Aereo and the cable companies distributed content in different ways. However, the majority took the position that—whatever the technical differences may be—Aereo still seemed like and acted enough like a cable company so that, if its technology had existed when Congress passed the Copyright Act of 1976, Congress would have treated Aereo like a cable company, requiring it to pay for the privilege of rebroadcasting over-the-air content. The majority also concluded that Aereo was publicly performing the plaintiffs’ television shows.
An individual is clearly entitled under the law to set up an antenna and record onto a DVR a copyrighted show that was broadcast over the air. But the Aereo majority rejected the view that Aereo was merely a service provider that rented an antenna and a virtual, cloud-based DVR to each of its customers. By providing antennas and a virtual, cloud-based DVR to thousands of subscribers, Aereo crossed a line between what an individual is entitled to do on his or her own and what a company is not allowed to do on a large scale, even if it is merely helping people exercise their legal rights.
Ironically, the more liberal Justices sided with the vested interests—the television broadcasters and cable companies—against the individual who wants an easy, efficient way to enjoy the free over-the-air television transmissions, while the dissenting Justices, who favored allowing individuals to take advantage of the new technology, were from the conservative end of the bench. (More)
Aereo used arrays of small antennas to pick up over-the-air television shows and make them available to Aereo customers. Each customer was assigned a separate antenna. Aereo also allowed its customers to record television shows and save them in a cloud storage dedicated to that customer. For this service, Aereo charged $8 a month. Prior appellate court cases had ruled that cable companies providing such individualized remote storage and playback systems did not infringe the copyright of the content owners. Aereo undoubtedly hoped that this line of thinking would apply to its individualized antennae. ABC and other over-the-air content providers hoped otherwise and sued to enjoin Aereo’s service.
The majority recognized that Aereo and the cable companies distributed content in different ways. However, the majority took the position that—whatever the technical differences may be—Aereo still seemed like and acted enough like a cable company so that, if its technology had existed when Congress passed the Copyright Act of 1976, Congress would have treated Aereo like a cable company, requiring it to pay for the privilege of rebroadcasting over-the-air content. The majority also concluded that Aereo was publicly performing the plaintiffs’ television shows.
An individual is clearly entitled under the law to set up an antenna and record onto a DVR a copyrighted show that was broadcast over the air. But the Aereo majority rejected the view that Aereo was merely a service provider that rented an antenna and a virtual, cloud-based DVR to each of its customers. By providing antennas and a virtual, cloud-based DVR to thousands of subscribers, Aereo crossed a line between what an individual is entitled to do on his or her own and what a company is not allowed to do on a large scale, even if it is merely helping people exercise their legal rights.
Ironically, the more liberal Justices sided with the vested interests—the television broadcasters and cable companies—against the individual who wants an easy, efficient way to enjoy the free over-the-air television transmissions, while the dissenting Justices, who favored allowing individuals to take advantage of the new technology, were from the conservative end of the bench. (More)
No comments:
Post a Comment