Thoughts on the Supreme Court Aereo Decision

The Supreme Court released its Aereo decision today.  They ruled 6-3 that Aereo's business model constituted Copyright infringement.

The ruling held that Aero rebroadcasting copyright material fell under the "public performance" definition of the 1976 Copyright Act.  The relevant clause made it illegal "to transmit or otherwise communicate a performance or display of the work ... to the public by means of any device or process, whether the members of the public are capable of receiving the performance or display receive it in the same place or in separate places at the same time or at different times."


Here's a translation of that clause for those not familiar with legalese  .

It is illegal to copy a broadcast containing copyrighted material and then rebroadcast that material to the general public.  The manner of receiving the broadcast and the number of people receiving it are irrelevant.

Given this, I think it's fairly obvious that Aereo's business model violated the 1976 Copyright Act.  They were streaming copied versions of copyrighted material over the Internet.


The dissent held that Aereo's business model was no different from the videocassette recording industry business found legal in the 1984 Betamax case.  I have to disagree with Scalia on this one (I don't do that very often).

There is a key distinction between the technology involved in the Betamax and Aereo cases.  In the Betamax case, the recorder was located in the user's home.  With Aero, the material was stored on Aereo's servers, and the streamed over the Internet when the user wanted to watch it.

When someone used a videocassette recorder, everything is done in the privacy of the home and more importantly, there is no rebroadcast of the material.  Aereo recoded the material on their servers and then rebroadcast it.


The fundamental flaw in Aereo's business model is that is involves streaming the copyright material over the Internet after it has been recorded.  This constitutes a broadcast, or as the law puts it "a performance."  It is the streaming video portion of Aereo's business model that distinguishes it from technology used in the home to record television shows and is what makes Aereo's actions illegal.