• The Supreme Court Pulls the Plug on Cloud Based Television
  • July 14, 2014 | Author: Michael J. Colitz
  • Law Firm: GrayRobinson, P.A. - Tampa Office
  • Have you ever wished it was easier to view television programming over the Internet? Customers who currently do so must rely upon services provided by local cable companies or must record programs locally via a digital video recorder. Efforts by a startup company to simplify Internet based viewing were recently declared illegal by the Supreme Court in American Broadcasting Companies, Inc., et al. vs. Aereo, Inc.

    Aereo’s service allowed customers to view broadcast television over the Internet with very little time delay. Aereo did this by creating a large number of dime-sized antennas, each of which was tuned to receive an over-the-air broadcast signal. Each Aereo subscriber would be assigned one, and only one, antenna. When the subscriber wished to view a particular television show, the antenna would be tuned to receive the corresponding over-the-air signal. The signal would be converted to a digital file and stored in the “cloud” on an Aereo computer server. This file would be personal to the subscriber and would allow the customer to access the cloud-based programming in near real-time or at a later time.

    Television broadcasters and producers were, not surprisingly, upset by Aereo’s newfound technology and subsequently sued for copyright infringement. In particular, the broadcasters argued that Aereo deprived them of the exclusive right to perform the copyrighted work publically, as provided by the Copyright Act of 1976. The case presented the Supreme Court with two related questions: first, did Aereo’s technology involve a “performance;” and second, if there was a performance, was it a performance to members of the “public.” The Court, siding with the broadcasters, answered both questions in the affirmative.

    As to the first question, the Court looked at the 1976 amendments to the Copyright Act and something called the “Transmission Clause.” The Transmission Clause was added to make it clear that a performance includes the transmission of the associated signals. These amendments were made to combat a precursor of cable television known as Community Antenna Television (CATV). CATV was a service used in places where over-the-air reception was limited. Large community antennas were constructed and coupled to homes via co-axial cables. The amendments to the Copyright Act, and the Transmission Clause in particular, effectively outlawed CATV providers. The Court found that the Transmission Clause applied equally to CATV providers as well as the modern Internet equivalent as devised by Aereo.

    The Court likewise rejected Aereo’s second argument; namely, that its transmissions were not to members of the public. Aereo argued that since each antenna was assigned to only one user it was not transmitting the programming to members of the general public. The Court rejected this argument by looking at the definition of public. First, the Court argued that public as used in the Copyright Act means a large group of people outside of family and friends. The Court also defined public in accordance with the Transmission Clause, which states that a performance is public regardless of whether it is received at a single place or multiple places or whether it is received at a single time or at multiple times. This definition proved fatal to Aereo’s argument insomuch as it was undisputed that Aereo’s system sent different copies of a single broadcast to a number of different users at a number of different times.

    Ultimately, the Court concluded that Aereo’s technology infringed upon the right to perform the copyrighted works publicly. As a result, startups such as Aereo must go back to the drawing board in their efforts to increase customers’ viewing options.