ABC, Inc. v. Aereo, Inc.

The Copyright Act of 1976 gives a copyright owner the exclusive right to “perform the copyrighted work publicly.”

Opinion (Scalia): Respondent Aereo, Inc. (“Aereo”), sells a service that allows subscribers to watch television programs over the Internet at about the same time as the programs are broadcast over the air. Petitioners, who are television producers, marketers, distributors, and broadcasters that own the copyrights in many of the programs that Aereo streams, sued Aereo for copyright infringement. They sought a preliminary injunction, arguing that Aereo infringed their right to “perform” their copyrighted works “publicly.” The District Court denied the preliminary injunction, and the Second Circuit affirmed.

The Copyright Act of 1976 gives a copyright owner the exclusive right to “perform the copyrighted work publicly.” Congress amended the Copyright Act to clarify that to “perform” an audiovisual work means “to show its images in any sequence or to make the sounds accompanying it audible.” Thus, both the broadcaster and the viewer “perform,” because they both show a television program’s images and make audible the program’s sounds. The Act’s Transmit Clause defines the right to perform to include the right to “transmit” a performance of the copyrighted work to the public. The Clause makes clear that an entity that acts like a community antenna television (“CATV”) system itself performs, even when it simply enhances viewers’ ability to receive broadcast television signals.

Because Aereo’s activities are substantially similar to those of the CATV companies, the Court determined Aereo to not simply be an equipment provider. Aereo sells a service that allows subscribers to watch television programs, many of which are copyrighted, virtually as they are being broadcast.

While petitioners argued that Aereo transmits a prior performance of their works, Aereo argued the performance it transmits is the new performance created by its act of transmitting. The Court assumed arguendo that Aereo was correct and thus assumed that to transmit a performance of an audiovisual work means to communicate contemporaneously visible images and contemporaneously audible sounds of the work. Under the Court’s assumed definition, Aereo transmits a performance whenever its subscribers watch a program.

Aereo further claimed that because it transmits from user-specific copies, using individually-assigned antennas, and because each transmission is available to only one subscriber, it does not transmit a performance “to the public.” The Court found, however, that behind-the-scenes technological differences do not distinguish Aereo’s system from cable systems, which do perform publicly. The Court found Aereo to perform publicly, thus infringing petitioners’ copyrights.

The Court REVERSED and REMANDED the circuit court’s ruling.