Being Right Never Felt so Wrong: Aereo, the Public Performance Right, and a Call for Congressional Intervention

Abstract

Aereo is an innovative startup that uses arrays of remotely-controlled antennas connected to hard drives to allow its subscribers to watch and record free local over-the-air broadcast television content on internet-connected devices. Each antenna is positioned for optimal reception and is uniquely assigned to an individual Aereo subscriber when she logs into Aereo’s system. The system provides each Aereo subscriber with the functionality of a set-top antenna, DVR, and SlingBox combined, but the hardware is stored at an Aereo facility rather than a subscriber’s home.

Television broadcasters have initiated lawsuits against Aereo in every jurisdiction where the company has launched for what broadcasters allege is infringement of a provision in United States copyright law that grants copyright holders the exclusive right to perform their works publicly. Aereo has asserted that, under the language of the nearly-forty-year-old Copyright Act, its system is non-infringing because each Aereo subscriber generates a private performance for herself using a uniquely assigned antenna. On April 22, 2014, the Supreme Court will hear oral arguments from each side and is expected to issue a decision no later than July.

This paper argues – by way of examination of relevant cases, communications regulation, legislative history, and by comparative analysis with international case law and legislation – that Aereo’s interpretation of the Copyright Act is correct, but that the dated copyright statute is ill-equipped to address technological advances like Aereo.

No matter what the Supreme Court decides, Congress must act quickly to pass new legislation that will ensure that innovation and the legitimate interests of rights holders are protected for years to come.

Keywords: Aereo, internet, law, public, publicly, perform, performance, right, transmit, clause, transmission, work