April 2, 2013 | By Mitch Stoltz

Victory for Aereo, TV Watchers, and Innovation Without Permission

The federal appeals court in New York affirmed yesterday that Internet streaming service Aereo is not infringing copyright when it enables users to stream broadcast TV to Internet devices.  The Court of Appeals for the Second Circuit upheld the trial court's decision not to shut down Aereo while the case is pending. This decision is a win for Aereo, its customers, and for future innovators with the audacity to improve the TV-watching experience without permission from copyright owners.

Aereo placed hundreds of tiny antennas on a Brooklyn rooftop. For a fee, New Yorkers can rent an antenna and receive local television on any Internet-connected device. The major American TV networks sued Aereo, claiming that it was making "public performances" of their broadcasts, something that copyright law reserves to copyright holders. The case quickly became a battle of metaphors: the networks argued that Aereo was acting like a cable system, which must have a license from copyright holders, while Aereo argued that its system was more like a personal "rabbit ears" antenna, which requires no permission from broadcasters. The trial court declined to shut Aereo down before trial, and the networks appealed that decision. EFF, together with Public Knowledge, filed amicus briefs in both courts supporting Aereo's right to innovate in the personal TV technology space.

The appeals court came down firmly on the side of the "rabbit ears" metaphor:

It is beyond dispute that the transmission of a broadcast TV program received by an individual’s rooftop antenna to the TV in his living room is private, because only that individual can receive the transmission from that antenna, ensuring that the potential audience of that transmission is only one person. Plaintiffs have presented no reason why the result should be any different when that rooftop antenna is rented from Aereo and its signals transmitted over the internet.

The court also rejected the networks' argument that Aereo's individual transmissions over the Internet to each subscriber should be "aggregated" together into a single public performance. "If the potential audience of the transmission is only one subscriber," said the court, "the transmission is not a public performance."  The court concluded that because each Aereo user receives TV signals using a unique antenna, and because the signal from that antenna goes only to one subscriber, Aereo was not making public performances, and copyright law simply doesn't touch Aereo's system.

The decision is a positive step because it repudiates the "permission culture" worldview of the TV networks and their allies. The networks, joined by ASCAP, sports leagues, and a former Register of Copyrights, argued essentially that anyone who profits from copyrighted works must be made to pay, and that if a company like Aereo builds a business that copyright law doesn't touch, the court should try to rewrite the law. Courts can't do that, of course. Copyright law has never regulated all possible uses of creative works. Many uses are free for everyone, without payment or permission, and private, personal transmission of free TV is one of them.

This is also a great decision because it gives companies like Aereo an incentive to put TV technology firmly under the viewer's control. The same features that put Aereo's system beyond the reach of copyright law also mean that the viewer can record what she wants to record, rewind and fast-forward at will, watch on any Internet-connected device, and retain all of the control that an old-fashioned rabbit ears and VCR allowed - and still get all the flexibility of an Internet-based service.  If Aereo had built a system resembling video-on-demand or pay-per-view, with customer choices strictly controlled from above, the court likely would have shut them down as infringing. By helping themselves, Aereo also put customers in control of their TV experience. That's an example of what good law should do.

A beloved star of one of the networks seeking Aereo's demise - PBS's Fred Rogers - testified in 1979 about the importance of video technology that empowers the individual:

Some public stations, as well as commercial stations, program the "Neighborhood" at hours when some children cannot use it ... I have always felt that with the advent of all of this new technology that allows people to tape the "Neighborhood" off-the-air, and I'm speaking for the "Neighborhood" because that's what I produce, that they then become much more active in the programming of their family's television life. Very frankly, I am opposed to people being programmed by others. My whole approach in broadcasting has always been "You are an important person just the way you are. You can make healthy decisions." Maybe I'm going on too long, but I just feel that anything that allows a person to be more active in the control of his or her life, in a healthy way, is important.1

Aereo, and other innovators that will surely follow, also allow people to be more active in the control of their lives. Yesterday, besides upholding the law as Congress wrote it, the appeals court followed Mister Rogers' wise approach.

  • 1. Sony Corp. of Amer. v. Universal City Studios, Inc., 464 U.S. 417, 445 n.27 (1984)

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