Academic journal article Iowa Law Review

Aereo, Unlicensed Retransmissions, and Emerging Technologies: The Case for Congressional Action

Academic journal article Iowa Law Review

Aereo, Unlicensed Retransmissions, and Emerging Technologies: The Case for Congressional Action

Article excerpt

I. INTRODUCTION

In American Broadcasting Companies v. Aereo, Inc., ("Aereo") the Supreme Court resolved a split among federal courts over whether unlicensed retransmissions of broadcast television programs over the Internet violated copyright holders' exclusive public performance rights.1 Aereo, a television retransmission business that launched in early 2012 and attracted millions of dollars in investment, had spread rapidly across the United States and prompted litigation in several circuits regarding the copyright implications of its system.2 By holding that Aereo infringed protections guaranteed to copyright holders, the Supreme Court overturned the Second Circuit's interpretation of the Transmit Clause of the Copyright Act.3 The decision was a death knell to Aereo and other businesses that were built around retransmitting broadcast television programs to subscribers over the Internet.4

This Comment explores the Aereo decision and its potential effects. Part II examines the relevant portions of the Copyright Act and the split in authority between the Second Circuit Court of Appeals and federal district courts outside the Second Circuit regarding whether unlicensed retransmissions by Aereo-like services violated copyright holders' exclusive public performance rights. Part III discusses the Aereo decision, which resolved the lower courts' disagreement over the proper interpretation of the Copyright Act and its Transmit Clause. Part IV explores the potential effects of the Aereo decision, its potential impact on other technologies, and the broader issues underlying the Aereo litigation. Part V concludes by arguing that Congress should perform a comprehensive update of the Copyright Act to address changes in technology.

II. THE SPLIT AMONG FEDERAL COURTS

This Part discusses the portions of the Copyright Act at issue in the Aereo litigation, including the exclusive public performance right guaranteed to copyright holders and the Transmit Clause. It then explores Aereo and its business model, the Second Circuit's interpretation of the Transmit Clause as allowing Aereo to retransmit programs without violating exclusive public performance rights, and the rejection of the Second Circuit approach by federal district courts outside the Second Circuit.

A. THE COPYRIGHT ACT AND THE PUBLIC PERFORMANCE RIGHT

The Copyright Act of 1976 gives copyright holders several exclusive rights in their copyrighted work.5 As the Supreme Court has explained, these protections aim "to secure a fair return for an author's creative labor" while "stimulat[ing] artistic creativity for the general public good."6 One right the Copyright Act guarantees is the exclusive right to perform the work publicly.7 The statute defines "performing a work publicly" as (1) performing a work in a public location or at a "place where a substantial number" of people have gathered; or (2) "to transmit . . . a performance or display of the work . . . by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."8

B. THE TRANSMIT CLAUSE

The latter definition of a "public performance," known as the Transmit Clause, protects copyright holders against retransmissions of their works without their permission. This definition of "public performance" did not appear in the 1909 version of the Copyright Act; however, when Congress passed the 1976 Copyright Act, it broadened the definition of "public performance" by adding the Transmit Clause.9 Congress passed the 1976 Copyright Act in response to changes in technology, specifically the emergence of cable television, and included the Transmit Clause in order to abrogate Supreme Court decisions interpreting the 1909 Copyright Act to mean that cable companies did not "perform" copyrighted works by transmitting broadcast television to subscribers. …

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