United States: Supreme Court Issues Ruling On Aereo And The Public Performance Right

Last Updated: August 5 2014
Article by Stefan Mentzer, Christopher Glancy and Michael La Marca

On June 25, 2014, the US Supreme Court reversed a decision of the Second Circuit and held that Aereo publicly performs copyrighted television programming.1 The case has important implications for the public performance right under the Copyright Act and for new technologies and online services that make copyright-protected content available to the public.

The Aereo Service

Aereo is an online service that gives its subscribers the ability to view broadcast television programs on a variety of internet-connected devices like smartphones and tablets. Aereo's system consists of thousands of individual antennas connected to a remote server. Each subscriber is assigned an antenna, and no two users share the same antenna, even when watching the same program. Rather than transmit the feed directly to the user, Aereo creates a unique copy for each user of the desired program on its remote server. Then, depending on whether the user chooses "watch" or "record," the user-specific copy either is transmitted directly to the user or saved for later viewing. Aereo does not pay the copyright owners of the programming for the right to make their content available to its subscribers.

The Proceedings Below

In March 2012, several broadcast networks sued Aereo for copyright infringement. The district court denied their request for a preliminary injunction.

The networks appealed, claiming that Aereo's service infringed the exclusive right to publicly perform their copyrighted programming. In a split decision, the Second Circuit affirmed the district court's ruling. The court found that, because Aereo created a unique copy of the programming for each individual user, the potential audience for any Aereo transmission was only a single consumer. Unlike the transmissions made by cable system operators, which are capable of being received simultaneously by multiple recipients, Aereo's transmissions were private performances. The majority relied heavily on its 2008 Cablevision decision, which held that a remote-storage DVR system did not publicly perform the copyright owners' content. According to the court, the Aereo system was "not materially distinguishable" from the Cablevision system because each subscriber's selection created a unique individual copy of a given program that was accessible only to the user who made it rather than to the public at large.

The Supreme Court Decision

Writing for the majority, Justice Breyer addressed two questions: whether Aereo "performs" and whether Aereo does so "publicly."

First, the majority found that Aereo "performs" the plaintiffs' works. Congress's purpose in amending the Copyright Act was to overturn the Supreme Court's rulings from the late 1960s and early 1970s regarding community antenna television (CATV) systems, the precursors of modern cable systems. In Fortnightly Corp. v. United Artists Television, Inc.2 and Teleprompter Corp. v. Columbia Broadcasting System, Inc.3 the Supreme Court ruled that a CATV system, which merely used antennas to amplify a viewer's capacity to receive broadcasters' signals, did not perform the broadcasters' copyrighted works. In response to these decisions, Congress amended the Copyright Act to clarify that to peform an audiovisual work meant "to show its images in any sequence or to make the sounds accompanying it audible." The amendments effectively erased the court's distinction between broadcaster and viewer: because both the broadcaster and the viewer show a program's images and make its sounds audible, both necessarily performed the work. Congress also enacted the Transmit Clause, which states that an entity performs when it transmits a performance to the public.4 This made it clear that CATV entities peform even when they merely enhance viewers' ability to receive broadcast television signals.

The court found Aereo's activities substantially similar to those of CATV systems. The majority recognized that Aereo's system differed from CATV because those systems made constant transmissions while Aereo's system remains inert until a subscriber chooses to watch a program. The court conceded that "[i]n other cases involving different kinds of service or technology providers, a user's involvement in the operation of the provider's equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act."5 Without elaborating on this hypothetical distinction, however, the court concluded that, "[g]iven Aereo's overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here."6 The majority noted that the difference "means nothing" to the subscriber who, under both systems, can select what program to display.

On the second question, the court found that Aereo's performances are "to the public" within the meaning of the Transmit Clause. The court rejected Aereo's argument that because its transmissions generate user-specific copies through individually assigned antennas, it does not transmit a performance to the public because each transmission is available to only one subscriber. In light of Congress's regulatory objectives, these "behind-the-scenes" technological differences "do not render Aereo's commercial objective any different from that of cable companies,"7 which do perform publicly. Moreover, the differences Aereo highlights do not "significantly alter the viewing experience of Aereo's subscribers."8

The Transmit Clause provides that one may transmit a performance to the public "whether the members of the public capable of receiving the performance...receive it...at the same time or at different times."9 Under the majority's interpretation, this language suggests that when an entity communicates the same contemporaneous work (in other words, it shows the same images and makes audible the same sounds), it transmits a performance to the public regardless of whether it is through a single transmission or multiple discrete transmissions. The fact that Aereo transmits programs through user-specific copies is also irrelevant. The majority reasoned that a "copy" of a work is simply a material object in which a work is fixed and from which the work can be communicated. Regardless of whether Aereo transmits a program using a single copy of the work or an individual copy for each viewer, it is engaging in a public performance when it "streams the same television program to multiple subscribers" who are unrelated and unknown to each other.10 The court concluded that "Congress would as much have intended to protect a copyright holder from the unlicensed activities of Aereo as from those of cable companies."11

In concluding its opinion, the majority addressed the argument made by Aereo and its supporting amici that finding Aereo's conduct to be a public performance would impede the development of new technologies. The majority emphasized the limited nature of its decision, stating that "to the public" did not extend to those who act as owners or possessors of products in which copyrighted works are embodied, and noting that the opinion did not consider whether the public performance right is infringed when a user of a service pays for something other than the transmission of a copyrighted work, such as the remote storage of content in a cloud-based storage service.


The decision has several key implications:

Aereo will have to change its business, obtain retransmission licenses or, more likely, shut down.

Television producers, marketers, distributors, and broadcasters have, for the time being, preserved their established business models. Retransmission royalties will continue to be a large source of revenue for copyright owners.

The decision probably will not have a large chilling effect on new and emerging technologies. The court declined to overturn Cablevision, and it explicitly confined its reasoning to the facts of the case. Moreover, online services independently can continue to benefit from the fair use doctrine and the Digital Millennium Copyright Act safe harbors.

New online services will seek to fill the void left by Aereo. Further litigation in this area is likely as these services test the limits of the Aereo ruling.


1 Am. Broad. Cos., Inc. v. Aereo, Inc., 573 U.S. __ (2014).

2 392 U.S. 390 (1968).

3 415 U.S. 394 (1974).

4 17 U.S.C. ァ 101 ("To perform...a work 'publicly' means...to transmit or otherwise communicate a performance...of the work...to the public, by means of any device or process, whether the members of the public capable of receiving the performance...receive it in the same place or in separate places and at the same time or at different times.").

5 Am. Broad. Cos. v. Aereo, Slip Op. at 10.

6 Id.

7 Id. at 12.

8 Id.

9 Id. at 13-14 (quoting 17 U.S.C. ァ 101).

10 Id. at 14.

11 Id. at 13.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Harvey Siskind LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Harvey Siskind LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq痴 use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor痴 own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq痴 Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq痴 Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq痴 right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions