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

By Delaney, Kevin W. | Rutgers Computer & Technology Law Journal, Spring 2016 | Go to article overview

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


Delaney, Kevin W., Rutgers Computer & Technology Law Journal


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

"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)

CHAPTER 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 displays the fear many in the television industry had of Aereo. Aereo, after all, stood to hinder the ability of the television networks and television broadcasters to earn revenue from retransmission consent agreements, agreements in which cable and satellite providers compensate broadcasters for the right to retransmit their signals. Retransmission consent agreements provide the television industry with an important source of income, and a loss of revenue from them would unquestionably alter the television landscape. …

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