Asking the Right Questions in Copyright Cases: Lessons from Aereo and its International Brethren

37 Pages Posted: 19 Dec 2014

See all articles by Rebecca Giblin

Rebecca Giblin

Monash University - Faculty of Law

Jane C. Ginsburg

Columbia University - Law School

Date Written: December 16, 2014

Abstract

Aereo was a US-based service that made unique copies of broadcast programs from individual antennae for each requesting user, for individual retransmission near-live or at some point in the future. To the uninitiated, it makes no sense for a company to design a television transmission service that utilises thousands of tiny antennae and thousands of copies to deliver signals to users. Wouldn’t it be much more efficient to use just one of each? And surely, when it comes to copyright liability, wouldn’t more copies result in more infringement, not less? However, Aereo’s strategy made a lot of sense when viewed through the prism of US copyright law as then interpreted. In this paper we argue that US judicial decisions focusing on the “wrong” questions in assessing liability for copyright infringement directly encouraged Aereo’s business model. We then discuss the Supreme Court’s recent ruling that Aereo’s transmission of signals “near-live” does fall within the scope of the exclusive right of public performance, and argue that, in correcting the Second Circuit’s erroneous inquiries, the Supreme Court raised some “wrong” questions of its own. We also examine the legal responses to Aereo’s predecessors in Singapore, Japan, Australia, Germany, France and the EU to determine whether similarly “wrong” questions have distorted copyright analysis elsewhere. Finally, we use the insights from that international study and Aereo to identify what the “right” questions might be.

Suggested Citation

Giblin, Rebecca and Ginsburg, Jane C., Asking the Right Questions in Copyright Cases: Lessons from Aereo and its International Brethren (December 16, 2014). Columbia Law and Economics Working Paper No. 504. Available at SSRN: https://ssrn.com/abstract=2539142 or http://dx.doi.org/10.2139/ssrn.2539142

Rebecca Giblin

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

Jane C. Ginsburg (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
Rm 710
New York, NY 10027
United States
212-854-3325 (Phone)
212-854-7946 (Fax)

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