On April 22, 2014 the United States Supreme Court heard oral arguments in the case of American Broadcasting Company (“ABC”) v. Aereo.  Although this case has been overshadowed by other matters on the Court’s docket and has received very little media attention, the Court’s decision will potentially have an impact on copyright law that is as significant as the vindication of the VCR in Sony v. Universal.

Aereo’s technology enables thousands of viewers to watch television online.  Aereo accomplishes this by assigning a tiny television antenna to each of its subscribers.  This tiny antenna is then connected to a private digital video recorder (“DVR”) located in a facility maintained by Aereo.  Aereo’s subscribers can access their private DVRs over the Internet to retrieve the content recorded through the use of their personal antenna.  Aereo’s technology has created an uproar from the television industry more raucous than Lars Ulrich’s response to Napster.  Fox Broadcasting even indicated that, should Aereo be permitted to remain in business, Fox may seriously consider getting out of the broadcast business entirely.

At issue is a dispute over the interpretation of a portion of copyright law centered on what activities amount to a “public performance” of copyrighted work.  Under United States Copyright law, performance of a copyrighted work may include “transmitting . . . the work . . . to the public, by means of any device or process.”  ABC, Fox and the other broadcasters claim that Aereo’s services amount to copyright infringement because Aereo’s services amount to “public performances” of copyrighted works.  In its defense, Aereo makes an interesting argument.  Aereo claims that it is not transmitting to the public at large, rather it is transmitting each of the copyrighted works thousands of times, directly to individual subscribers.  According to Aereo such a transmission is therefore not made “to the public.”  Aereo also argues that each of these “private” transmissions simply provides the Aereo subscriber with content that already was broadcast to the public without charge over public airwaves.  Aereo therefore asserts that it is merely allowing its subscribers to receive freely broadcast television content, store it in a private space at Aereo’s facilities, and later rebroadcast it to the subscriber through a secure internet connection at the time of the subscriber’s choosing.  Therefore, according to Aereo, its services are much more like “time shifting,” a practice that the Supreme Court approved when it decided the Sony v. Universal case in 1984.

The broadcasters claim Aereo’s activities act more like a cable company.  Cable companies receive freely broadcast content, then retransmit that content to cable subscribers.  Cable companies pay a license fee for the right to do this and, not surprisingly, broadcasters feel that Aereo should be required to pay this fee.  Aereo believes its model is distinguishable from a cable TV system.  Aereo claims it is only a replacement for the antennas that its users would otherwise put on their own rooftops.  They are not transmitting or retransmitting anything to the “public,” they are simply rebroadcasting private content recorded on a private DVR after being captured on a private antenna.

Obviously the outcome of this case could have a far-reaching impact on the types of services that are offered using the internet, or at the very least will have a significant impact on the cost of such services.  For now, we will keep watching and waiting for the Court’s ruling.  Stay tuned.