WNET v. Aereo
This is an exceptionally busy year for Intellectual property cases at the Supreme Court, and I thought I would talk about one that is especially interesting.
Aereo is a service that lets people in New York City to watch broadcast TV for a monthly fee. There is a brief delay (ten seconds) in the signal if you want to watch a show live. Or you can just record programming through a DVR service provided by Aereo. Aereo does not pay the networks for this programming, and they claim that this violates the Copyright Act (17 U.S.C. Sec. 101(2))
The Act says that copyrighted content may not be transmitted “to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”
A divided Second Circuit panel held that Aereo’s transmissions do not violate the section just quoted. The pane’s rationale was that Aereo is transmitting content only to a particular homes, not to the public. Why? Because each subscriber is assigned a specific (albeit tiny) antenna at Aereo’s facility. Thus, each transmission is to a single person or family. Footnote 16 of the opinion explains:
“The methodology Congress proscribed for distinguishing between public and private transmissions is the size of the potential audience, and by that methodology, the feed from Aereo’s antennas is a private transmission because it results in a performance viewable by only one user.”
With respect, I think the Second Circuit got this wrong. It seems to me the plain language of the statute does contemplate a situation where many individuals are getting transmissions of the same event “in separate places and at the same time or at different times.” And it seems odd to say, as Judge Chin notes in his dissent, that if Aereo transmits the Super Bowl live this Sunday to a million people, that this is not a public performance–it’s a million private performances.
IP law often stumbles over the problem that what is permissible for one person to do (share a CD or forward a video) may be impermissible when it is done for hundreds of thousands. The analogies just don’t make sense. And in this case, the Supreme Court should reverse and hold for the networks.