Aron Fischer, Partner

On June 25, 2014, the United States Supreme Court decided ABC v. Aereo, one of the more important (and most closely watched) copyright cases of the digital era. The Court’s 6-3 decision that streaming-TV startup Aereo “publicly performs” sounds the death knell of Aereo, at least in its present form. However, the Court limited its holding in several ways that may allow other Internet-based technologies and services that transmit media content to avoid “public performance” liability.

Aereo allows paying subscribers to watch broadcast TV over the Internet, virtually in real-time. It maintains an array of dime-sized TV antennas at its headquarters. When a subscriber chooses to watch a particular program via Aereo’s website, Aereo temporarily assigns one of those tiny antennas to that subscriber; tunes the antenna to the subscriber’s desired channel; encodes the signal being broadcast over that channel as a digital file; and then streams the contents of that digital file to the subscriber over the Internet. Aereo has no license from the owners of the copyrights in the programming that it transmits, and it pays them no royalties. All of the major television broadcasters sued Aereo for copyright infringement, alleging (among other things) that, by engaging in this process, Aereo “publicly performs” their copyrighted programs within the meaning of the Copyright Act.

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