The Supreme Court recently held that Aereo’s Internet-based television system infringed the copyrighted works of the television producers, marketers, distributors, and broadcasters that own the copyrights in the programs that Aereo streamed. The controversy behind Aereo has been brewing since 2012, when Aereo first introduced its novel “antenna-farm” system, which captured broadcast television signals and then retransmitted these signals to its subscribers’ Internet-connected devices for a fee. The broadcasters argued that Aereo was publicly performing their copyrighted works in violation of section 106 of the Copyright Act of 1976 (Copyright Act), which gives a copyright owner exclusive rights. One of these rights includes the exclusive right, “in the case of . . . motion pictures and other audiovisual works, to perform the copyrighted work publicly.” Aereo countered that it was not publicly performing the broadcasters’ works because its antenna-farm system assigned one antenna to each subscriber and created an individual copy of each program for each unique user. Essentially, Aereo argued that this kind of system was not a “public performance,” but rather several private performances. Aereo accordingly argued that these kinds of private performances did not violate the broadcasters’ performance rights under the Copyright Act.
Lower courts, however, were split on whether such systems were legal under current law. As multiple federal district courts and one circuit court of appeals decided on the legality of Aereo’s system and Aereo-like systems under the Copyright Act, two dominant interpretations emerged.1 One interpretation of the public performance right focused on the underlying program that was being transmitted.1 Under this view, Aereo publicly performed the broadcasters’ copyrighted works by retransmitting programs to all of its subscribers. The other interpretation focused on the discrete individual transmissions rather than the underlying work as a whole. Under this view, Aereo did not publicly perform the broadcasters’ copyrighted works because its system transmitted a private performance to each individual subscriber. In fact, such activity was eventually allowed in the Second Circuit, home of media hub New York City, while barred in the Ninth Circuit, home of Los Angeles, another major media hub.
This Comment examines the Copyright Act, with a keen eye on the Supreme Court’s recent decision in American Broadcasting Companies, Inc. v. Aereo, Inc.16 It primarily analyzes the language of the statute and its legislative history, and assesses the public policy implications under each interpretation of the public performance right. Ultimately, this Comment agrees with the Supreme Court that Aereo’s Internet-based television system was infringing under the Copyright Act. This Comment further analyzes how the federal courts had, prior to the Court’s decision, dealt with applying the statute to Aereo’s engineering, and criticizes the ambiguities of the relevant provisions of the Copyright Act. Finally, this Comment provides a potential solution that would revise a provision of the statute to more closely align the Act with congressional intent. This statutory proposal could possibly help avoid future copyright issues with emerging technology.