Academic journal article Rutgers Computer & Technology Law Journal

Aereo, the Public Performance Right, and the Future of Broadcasting

Academic journal article Rutgers Computer & Technology Law Journal

Aereo, the Public Performance Right, and the Future of Broadcasting

Article excerpt

"Patents and copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtile and refined, and, sometimes, almost evanescent. "

--Justice Joseph Story, Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841)

  I: AN INTRODUCTION TO AEREO
        A. How Aereo Worked
        B. An Introduction to the Litigation Surrounding Aereo
 II: HOW AEREO STOOD TO DISRUPT THE BROADCAST
        BUSINESS MODEL
        A. The Basics of Broadcasting
           1. The Development of the Broadcast Industry
           2. The Public Interest Standard
        B. The Basics of Cable
           1. The Development of the Cable Industry
           2. Legal Challenges to CATV Systems
           3. The Statutory and Administrative Regulation of
             Cable
        C. The Broadcasting Business Model.
           1. The First Prong of the Dual-Revenue Stream:
              Advertising
           2. The Second Prong of the Dual-Revenue Stream:
           Retransmission Consent Agreements
        D. Discussion
III: DID AEREO PERFORM THE BROADCASTERS' WORKS?.
        A. Statutory Text
        B. The Difference Between Direct and Secondary
           Copyright Liability
        C. The Volitional-Conduct Requirement
        D. The Supreme Court Determines Whether Aereo
           Performed
           1. The Majority Opinion: Arguing Aereo Performs
              Because it Resembles a Cable System
           2. The Dissenting Opinion: Arguing the Majority's
              Rationale was Flawed and Offering Support for
              the Volitional-Conduct Requirement
        E. Discussion.
 IV: DID AEREO PERFORM THE BROADCASTERS' WORKS
        PUBLICLY?
        A. Statutory Text
        B. Applying the Transmit Clause: Relevant Decisions
           Prior to Aereo
        C. Applying the Transmit Clause: The Lower Courts
           Determine Whether Aereo and FilmOn Performed
           the Broadcasters' Works Publicly
        D. The Supreme Court Determines Whether Aereo
           Performed the Broadcasters' Works Publicly
           1. The Majority's Primary Rationale: Aereo
              (Again) Resembles a Cable System
           2. The Majority's Secondary Rationale: The Text
              of the Transmit Clause Supports the Finding
              that Aereo Performed the Broadcasters' Works
              Publicly
           3. Justice Scalia's Dissent
        E. Discussion
   V: THE IMPACT ON THE CLOUD
        A. Aereo Argues Policy
        B. The Majority Distinguishes Aereo from "Different
           Kinds of Technologies"
        C. Justice Scalia's Dissent
        D. Discussion
  VI: CONCLUSION
        A. Reflections on Aereo III
        B. An Epilogue to Aereo III

I: AN INTRODUCTION TO AEREO

At the National Association of Broadcasters' annual convention in April of 2013, Chase Carey, the COO of 21st Century Fox, threatened to turn the Fox Network into a pay-television channel. (1) Carey's comment surprised many. It's hard to imagine the network that forever changed television with hits like The Simpsons, The X-Files, Family Guy, and American Idol, and made billions doing so, would cease to exist as one of America's broadcast networks. Carey, nevertheless, said the step might be necessary to protect 21st Century Fox's "product and revenue stream[]." (2)

What would cause Carey to consider such a monumental shift? The answer: Aereo--a company that retransmitted, without a license, broadcast content over the Internet to paying subscribers.

Although many were quick to decry Carey's comment as saber rattling, (3) the remark displayed the fear many in the television industry had of Aereo. Aereo, after all, threatened the revenue that television networks and television broadcasters earned from retransmission consent agreements, agreements in which cable and satellite providers compensate broadcasters for the right to retransmit their signals. …

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