Aereo Inc. (“Aereo”) is a company that sells a service that allows its subscribers to watch television programs over the internet. Aereo’s system includes thousands of small antennas and other equipment housed in a warehouse that allows a user to select a show that is currently airing. Utilizing Aereo, subscribers could select an out of network television program, and remotely view the selected program.

American Broadcasting (the petitioners) are television producers, marketers, distributors that own the copyrights of many of the distributed programs that are streamed by Aereo, and used for copyright infringement. Specifically, the petitioners argued that Aereo infringed on their copyright right to “perform” their copyrighted works “publically.”

One of the main contention points was whether Aereo actually “performed” the copyrighted works, because Aereo did not provide anything other than enhancing the viewer’s capacity to receive the broadcaster’s signals, and that the reception of signals is essentially a viewer function.  If this view was taken, then American Broadcasting would have to sue each user individually, which would be much harder than stopping a company from operating.

However, the Supreme Court stated that the Copyright Act has been amended, and states to perform an audiovisual work means “to shows its images in any sequence or to make that sounds accompanying it audible.” Thus, both the broadcaster and the viewer “perform.” The Supreme Court also stated that the Copyright Act also include a “transmit clause”, that specifically states that an entity performs when it transmits a performance to the public.

Therefore, the Supreme Court stated that Aereo infringed copyrights because it transmitted copyrighted work to the public.


  1. The court stated here that Aereo was infringing due to statutory intent of the copyright act. It will be interesting to see how “statutory intent” will be read into further cases dealing with time-shifting and space-shifting. Such as Slingbox, where you can locally store recorded TV shows and send them to yourself.  With Slingbox the reproduction isn’t to the “public” because you are transmitting the data to yourself. I am curious to see if there are set number of subscription limits to due this.
  2. With the “statutory intent” holding of the case, it will be interesting to see if doctrine is further expanded to claim construction, such as is held in the EU, where claims are given a broader reading based on their intent rather than their literal meaning.
  3. I find the Supreme Court holding that Aereo is actually performing because the decision to retrace the copyrighted content is based on the viewer, where the viewer “tunes” the antenna to specific content, and what comes through that channel may or may not be copyrighted. Secondary liability here (such as Napster) makes more sense to me than direct liability. I am curious if Aereo was to limit what was being shown (broadcast TV, cable where user’s had a subscription) if this case would have come out differently.
  4. Why don’t cable companies just encrypt their signals? Therefore, someone without encryption couldn’t view the data anyway?
By | 2014-07-06T14:55:47+00:00 July 6th, 2014|Blog|Comments Off on AMERICAN BROADCASTING COS., INC., v. AEREO, INC