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Global Media and Communications Watch The International Legal Blog for the Tech, Media and Telecoms Industry
Posted in Broadcasting, Copyright, Entertainment & Content Penny Thornton

USA: Supreme Court finds Aereo live streaming service infringes copyright

The US Supreme Court has delivered its much anticipated ruling in American Broadcasting Cos., Inc., et al. v Aereo, Inc, a case about whether Aereo’s live streaming service infringes US broadcasters’ public performance right. The Supreme Court found that it does, overturning the ruling of the Court of Appeals for the Second Circuit.

In 2012 the owners of various copyrights in television content sued Aereo in relation to its live streaming service, which allows subscribers to watch free, over-the-air television stations on its website at virtually the same time as the content is being broadcast. The system is comprised of thousands of tiny antennas housed in a warehouse, each one dedicated to an individual subscriber for the duration of the show they have selected to watch. Once that subscriber has selected a programme, the system creates a personal copy of the broadcast from the signals received by that subscriber’s dedicated antenna and streams it to the subscriber. After the District Court and the Court of Appeals for the Second Circuit both found that Aereo’s service did not infringe the broadcasters’ public performance right, the broadcasters sought review by the Supreme Court.

Copyright owners, including the owners of broadcast television programmes, have the exclusive right to “perform the copyrighted work publicly” in the US. The US Copyright Act of 1976 defines that right as including the right to “transmit or otherwise communicate a performance…of the…work…to the public, by means of any device or process…” This language was part of a series of amendments to the Copyright Act intended to cover the retransmission of broadcasts by traditional cable systems.

Aereo argued that it was merely a supplier of equipment that allows the subscriber (rather than Aereo) to perform the copyrighted works. It sought to distinguish itself from traditional cable companies by arguing that it is the subscriber who performs a work by initiating a request for the work to be received and transmitted. The Supreme Court was not persuaded by this argument.  The “overwhelming” similarities between Aereo and traditional cable systems led the Court to conclude that Aereo was not simply an equipment supplier, but that it “performs” the works.

On the question of whether the works are performed publicly, Aereo argued that its one-to-one system, which streams each transmission to each subscriber from an antenna ascribed to that subscriber personally, does not transmit a performance “to the public”. The Court found, however, that where Aereo is transmitting the same programme to multiple subscribers, it is transmitting a performance to all of them and this transmission amounted to a performance “to the public”.

The US Supreme Court’s approach to live streaming services is consistent with the approach taken in Europe. In ITV Broadcasting Ltd v. TV Catch Up Ltd, which also related to a live streaming service that was retransmitting free-to-air broadcasts in the UK over the internet, the Court of Justice of the European Union held that any retransmission which uses a different technical means must be authorised by the copyright owner and, therefore, the retransmission of broadcast content over the internet required the consent of the broadcasters. It did not matter that there was a “one-to-one connection” with each subscriber. The Court felt that a one-to-one connection did not prevent a large number of people having access to the work at the same time.

The United States Supreme Court in Aereo was careful, however, to state that its decision is limited to live streaming services (i.e., cable companies and their “equivalents”) and that the Court was not opining on whether other technologies, such as cloud computing services and remote storage digital video recorders, might infringe the public performance right.