Bows and Aereos–What’s Going on Here?

The Supreme Court appears to be continuing its interest in intellectual property cases (e.g., patents, trademarks and copyrights) by granting “cert” in four cases for the October 2014 term.

One of these cases (“Aereo” for short) poses the combined legal and technical question as to whether a television broadcast, streamed over the Internet in a certain technical manner, is public or private. In particular Aereo is a copyright case, and the issue is whether Aereo is copying proprietary material without the permission of the copyright owner. The broadcast networks oppose Aereo’s activities.

To date, and in the case going to the Supreme Court, Aereo has won, and the broadcast networks have lost. The broadcast networks thus are driving the appeal. Aereo is a Web-based service for receiving over-the-air TV broadcasts on your computer. In particular, Aereo can provide over-the-air broadcasts on an almost (but not quite, and legally this matters) real time basis. As I understand it, Aereo works as follows: Aereo owns lots–lots–of small (one inch diameter) antennas and plenty of server space. If you are an Aereo subscriber, and if you want to “watch” TV on your computer, you log in and tell Aereo which program you’d like to see. One of Aereo’s many antennas, and some of Aereo’s server space, are then assigned exclusively to you (and “exclusively” matters legally). The requested broadcast arrives at your assigned antenna in a manner analogous to the manner in which it would arrive over-the-air to the antenna on your house (what; you don’t have an antenna?) This analogy is also legally important (or at least it was to the Second Circuit, from which this appeal arises).

From your assigned Aereo antenna, Aereo begins recording the broadcast on your assigned portion of Aereo’s server(s). While you are thus logged on, no one else can use your antenna, and no one else has access to whatever is being recorded on your portion of the server space. The no-one-else factor is also legally important.

The streaming begins shortly after Aereo begins recording the broadcast for you. This stream is what you can watch on your Internet-enabled device.

The broadcast networks (ABC is the named party) object on the grounds that they own the copyright to the broadcast (“perform” is the legal term) and that Aereo’s combined gizmo’s and their function infringe on those performance rights.

Conceptually, copyright is relatively simple; it is the right to make copies of something. In legalese, the something is always referred to as the “work.” Because there are a number of ways to make copies (or, as the case may be, not make copies), copyright is referred to as encompassing a “bundle” of rights. The right to perform a copyrighted work-i.e., the TV broadcast-is one of the rights within this bundle. In turn, a transmission of a TV broadcast is a performance (i.e., that belongs to the copyright owner) if–and only if–the transmission is “to the public.”

The law thus recognizes a difference between transmissions that are carried out privately and those carried out publicly. Based on the relevant portion of the US copyright statute, the more focused version of the Aereo issue is whether or not the Aereo technology results in a public transmission of a broadcast or a private one. If public, the transmission is a copyright violation; if private, it’s no different (legally) from receiving over the air signals from your antenna at your house.

To the extent there is a take-away, what is it? To me, the most interesting part is the intersection of the technology itself, a working knowledge of the technology, the relevant law, and a working knowledge of the law. The lawyers in this case need to understand the technology of broadcast television, antenna physics and function, computer storage and retrieval, and Internet streaming. From a legal standpoint, they need to understand copyright law in general and the “transmission clause” in particular.

The second circuit decision in Aereo is also interfering because it draws from at least four main sources: the copyright statute, the legislative history, the transmission clause in the statute, prior case law (precedent), and the actual technology of Aereo.

Final word on this blend of technology and copyright law will have to wait for the Supreme Court, possibly as late as June 2015.