Aereo, and the Strange Case of the “Public Performance” Right in Copyright Law

As you can see in this very informative infographic and blurb, there’s been a LOT of activity recently, with a good deal more on the way, involving the question of whether Aereo’s technology (or that of a copycat service, formerly called “Aereokiller” and now “FilmOn”) constitutes a “public performance” of the underlying copyrighted TV shows.  [In a nutshell:  the technology involves assigning a tiny antenna and a portion of disk space to each subscriber, which allows the subscriber to record and subsequently to view over an Internet connection, anything he/she has recorded from the over-the-air TV broadcasts.  See my earlier blog posting, here].  Is this a “public performance” of the copyrighted programming (in which case Aereo is infringing, unless it obtains a license)?  Or is it a (large) number of private performances, one for each subscriber, in which case it’s not an infringement and no license is necessary.

The issue has the TV industry up in arms – a few months ago, a Fox Broadcasting spokesman indicated that if Aereo’s early victories in the courtroom (in the 2d Circuit) were not somehow overturned, that it would seriously consider getting out of the broadcast business entirely.

It’s a very, very complicated little issue of statutory construction.  The basic problem is this:  the statute defines a “public performance” of a copyrighted work to include “transmit[ing] . . . a performance . . . of the work . . . to the public, by means of any device or process . . .”  The broadcasters say – not implausibly – that that is exactly what Aereo is doing: transmitting a performance of copyrighted programming to the public.  No, says Aereo:  we’re not transmitting “a performance,” we’re transmitting thousands of performances, each one of which goes only to a single subscriber (and therefore not “to the public.”).  And the broadcasters say:  Aereo is doing exactly what the cable systems do when they re-transmit our programming to subscribers, and they pay a license fee when they do so; Aereo should do the same.  No, says Aereo, we’re not like a cable system – we’re just a replacement for the antennas that users can put up on their rooftops, and they don’t need a special “license” to do that because by receiving on-the-air broadcasts via that antenna does not transmit anything “to the public.”

I think Aereo has the better of the arguments, and I’ve put together a short-ish memorandum explaining why.  But this one is very likely to go upstairs to the Supreme Court at some point pretty soon . . .