American Broadcasting Cos. V. Aereo, Inc
Steven Tepp · Federal communications law journal · 2014
TABLE OF CONTENTS I. BACKGROUND A. Fortnightly and Teleprompter B. 1976 Act C. Cablevision II. AEREO A. Operational facts B. Lower Court Litigation III. SUPREME COURT DECISION A. Majority opinion 1. If it walks like a duck and quacks like a duck a. Does Aereo perform? b. Is Aereo's performance public? 2. Clouded Cablevision B. Dissent IV. CONCLUSION Few things are as central to Americans' lives as their television. But the medium that has for decades been defined by the device on which it has traditionally been viewed is now undergoing a transformation to computers, tablets, and smartphones. Americans want their programming to be available no matter where, no matter when, and no matter on what device. Creative industries have responded by addressing that demand with a multitude of licensed services; at least 100 unique platforms for viewing and full-length films are available in the United States alone. (1) Still, when a service appears that offers another attractive alternative, it will draw viewers--even if its legality is questionable. Aereo, (2) and its competitor Aereokiller/FilmOn, (3) fit that description. Like iCraveTV and other previous services, Aereo and FilmOn burst onto the scene, offering customers an opportunity to view programming remotely across the Internet. And like iCraveTV, (4) Aereo did not have permission from either the broadcaster or the copyright owner, and litigation ensued. Part I of this comment will briefly summarize the legal background against which the Aereo service was engineered. Part II will describe the pertinent design and functions of the Aereo service. Part III will review and analyze the recent decision of the U.S. Supreme Court in American Broadcasting Cos. v. Aereo, Inc., (5) as well as the dissent. (6) The issues presented in this litigation have implications beyond the specific facts of the case, and those issues remain controversial. This comment is intended to provide an even-handed account of the Court's opinions and, while it will note unanswered questions, it does not seek to offer answers to them. I. BACKGROUND The Golden Age of Television of the 1950s must surely seem like the Dark Ages to modern audiences. Back then, there existed a scant three broadcast networks, (7) supplemented by a handful of low-power local stations, if at all: no ability to record or rewind live broadcasts; no 'on demand' content; no ability to purchase episodes or movies on videotape, DVD, or download; and reception that depended on each home's location, antenna positioning, weather, and other factors. Some towns, isolated from broadcast stations by distance from a broadcast market and/or local topography, found broadcast signals difficult or impossible to receive. (8) To rectify that shortcoming, in many communities, a single large tower was erected to receive broadcast signals and transmit them over cables to nearby residences. (9) This community access television or was the early forerunner of modern cable systems. (10) A. Fortnightly and Teleprompter These CATV systems posed an interesting copyright question: did they publicly perform the shows they enabled people to view, thus implicating the Copyright Act--which secures to copyright owners the exclusive right to publicly perform their original creative works? In 1968, the Supreme Court addressed this question when it decided Fortnightly Corp. v. United Artists Television, Inc. (11) The defendant/appellant, Fortnightly Corporation, operated a CATV system that made available copyrighted works to subscribers without licenses from the copyright holders. (12) The plaintiff/appellee, United Artists Television, Inc., was the copyright holder of several of the works that Fortnightly transmitted. …