Supreme Court Rules 6–3 Against Aereo

For about two years, a New
York–based business called Aereo has offered a useful service: It
receives local TV broadcasts on thousands of tiny antennas, stores
the programs on DVRs, and transmits them on demand to
subscribers’ laptops, tablets, and phones. Today the Supreme Court
told the company to cut it out: Reversing a lower court’s decision,
it ruled
6–3 that Aereo’s activities violate copyright law.

The big broadcasters don’t like Aereo because it doesn’t pay the
fees that cable and satellite companies pony up for the right to
retransmit programs. So they sued, claiming that Aero’s efforts
amount to a public performance of their copyrighted material.
During oral
arguments, Aereo attorney David Frederick argued that this
characterization of the company’s activities was wrong, and that it
was merely “providing antennas and DVRs” that let consumers do
things that are already legal.

The Court sided with the broadcasters. Writing for the majority,
Justice Stephen Breyer points out that Congress amended the
Copyright Act for the specific purpose of treating cable broadcasts
of local TV channels as performances. What Aereo has been doing,
Breyer concludes, is similar enough to qualify as a performance
too. Frederick had argued that even if this were so, that would not
make its service a public performance, since each
transmission is received only by the user who requests it—a
private transaction. The Court was unpersuaded, arguing
that in practical terms this was still fundamentally the same as
cable.

Justice Antonin Scalia’s dissent—which was joined by justices
Clarence Thomas and Samuel Alito—calls this an “improvised
standard” that amounts to “looks-like-cable-TV.” The dissenters
deny that the company engages in a performance at all, let alone a
public one. An Aereo transmission “undoubtedly results in a
performance,” Scalia writes, but “the question is who does
the performing.” If the answer to that question is unpalatable to
the TV industry, the “proper course is not to bend and twist the
[Copyright] Act’s terms in an effort to produce a just outcome, but
to apply the law as it stands and leave to Congress the task of
deciding whether the Copyright Act needs an upgrade.”

For more on the issue—and on what’s coming next—here is a Reason
TV video from earlier this month: