Major Setback for Net-Based TV at Supreme Court

Today in ABC v. Aereo, a divided Supreme Court held companies that stream content over the Internet are legally the same as cable companies, and violate copyright laws by carrying someone else’s content.

Aereo provides paying subscribers with a service allowing them watch television programs over the Internet. Aereo tunes into the program, stores up several seconds’ worth of data, then begins transmitting it over the net to the viewer. ABC Broadcasting and various other network broadcasters, producers, marketers, and distributors sued, alleging this service violates the broadcasters’ copyrights.

The Copyright Act of 1976 gives a copyright owner the “exclusive right” to “perform the copyrighted work publicly.” In a 6-to-3 decision written by Justice Stephen Breyer, the Supreme Court held that what Aereo provides violates the current version of that law.

The majority compared Aereo to cable television. Finally Breyer concluded:

In sum, having considered the details of Aereo’s practices, we find them highly similar to those of [two previous cable-TV cases]. And those are activities that the 1976 amendments sought to bring within the scope of the Copyright Act. Insofar as there are differences, those differences concern not the nature of the service that Aereo provides so much as the technological manner in which it provides the service. We conclude that those differences are not adequate to place Aereo’s activities outside the scope of the Act.

Justice Antonin Scalia dissented, joined by Justices Clarence Thomas and Samuel Alito. As Scalia explained:

This case is the latest skirmish in the long-running copyright battle over the delivery of television programming… we are here concerned with a single claim: that Aereo violates the Networks’ “exclusive right” to “perform” their programs “publicly.” That claim fails at the very outset because Aereo does not “perform” at all. The Court manages to reach the opposite conclusion only be disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come.

Scalia compared Aereo to a copy shop that provides users with a library card. He explained that it’s not like video-on-demand because the TV programs must be watched almost-live (several seconds’ delay behind the original broadcast). They are not archived and so cannot be accessed later.

After going through Supreme Court precedent, Scalia explained, “Aereo does not ‘perform’ for the sole and simple reason that it does not make the choice of content. And because it does not perform, it cannot be held directly liable for violating the Networks’ public-performance right.”

Scalia acknowledged that there are other claims that ABC and others might bring under the Copyright Act, but that none of those are before the Court in today’s case.  

Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.