Court to Determine the Fate of Broadcast Television

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About Our CourtCourt To To DetermineDetermine the Fate the of FateBroadcast of Broadcast Television Television Newsletter Vol. 30 No. 3 Communications Vol. 30 No. 3 By Jessica Ring Amunson Lawyer is published By Jessica Ring Amunson four times a year by Ms. AmunsonMs. Amunson is ais partnera partner inin the AppellateAppellate and and Supreme Supreme Court Courtthe and Forum the onMedia and First Amendmentand the Media practices and First at JennerAmendment & Block practices LLP. at JennerJenner & & Block Block isCommunications counsel to some Law of the of the American Bar petitionersLLP. Jenner in the is counselABC v. to Aereo some ofcase. the petitioners in the ABC v. Association. It is Aereo case. available online to members of the On AprilOn April 22, 2014,22, 2014, the Supreme the Supreme Court Court heard heard oral argumentssystems (the in aprecursorsForum. to cable systems) were not oral argumentscase that could in a decidecase that the could continued decide viability the of broadcastpublicly performing when they captured broadcast Visit the Forum on continuedtelevision. viability In Americanof broadcast Broadcasting television. Companies, In Inc.,television et al. offv. the air andCommunications retransmitted Law the AmericanAereo, Broadcasting Inc., the Court Companies, granted certiorari Inc., et al. to addressprograms a seemingly to their subscribers.More Publications from the Forum on Communications Law v. Aereo,straightforward Inc., the Court question granted of statutory certiorari interpretation to involving a Enter Aereo and its interpretationAuthor Guidelines of the “Transmit addresssingle a seemingly clause of thestraightforward Copyright Act: question whether of a company “‘publicly Clause.” Backed by media mogul Barry Diller, in statutoryperforms’ interpretation a copyrighted involving television a single program clause when it retransmits a February 2012, AereoContact began offeringUs a service of thebroadcast Copyright of Act:that whetherprogram ato company thousands “‘publicly of paid subscribers over in New York under which subscribers could pay a performs’the Internet.” a copyrighted How the television Court answers program that when question will have Erin Remotigue monthly fee to receive either live or time-shifted it retransmitsenormous a implications broadcast of for that the program future of to television. American Bar streams of over-the-air broadcast television on thousands of paid subscribers over the Internet.” Association their Internetconnectederin.remotigue@americ devices. The trick is that How Atthe issue Court in answersthe case thatis the question novel interpretation will have of the Copyright each subscriber is assignedanbar.org an individual antenna enormousAct advanced implications by Aereo. for the Under future the of Act, television. a copyright holder in Aereo’s large antennae farms, and each Internet possesses the exclusive right “to perform the copyrighted work At issue in the case is the novel interpretation of stream originates fromMore a separateInformation copy of the publicly.” 1 In the 1976 Copyright Act, Congress provided that a the Copyright Act advanced by Aereo. Under the broadcast made by Aereo’s servers. Thus, Aereo public performance is one in which someone “transmit[s] or Editorial Board Act, a copyright holder possesses the exclusive contends that it is not “publicly performing” the otherwise communicate[s] a performance or display of the work … Lee S. Brenner, Kelley right “to perform the copyrighted work publicly.” broadcasters’ copyrighted work. Instead, Aereo to the public, by means of any device or process, whether the Drye & Warren LLP In the 1976 Copyright Act, Congress provided that argues it is offering a private performance to each members of the public capable of receiving the performance or Dave Giles, EW Scripps a public performance is one in which someone subscriber because each Internet transmission display receive it in the same place or in separate places and at Co. “transmit[s] or otherwise communicate[s] a from a separate antenna and a separate copy the same time or at different times.”2 This “Transmit Clause” was Amanda M. Leith, NBC performance or display of the work … to the public, should be viewed in isolation. The broadcasters meant to overturn two Supreme Court cases that had held that Universal by means of any device or process, whether the sought to enjoin Aereo from offering its service community-antenna television systems (the precursors to cable members of the public capable of receiving the in New York, but theForum Second Chair Circuit agreed with systems) were not publicly performing when they captured performance or display receive it in the same Aereo’s interpretationSteven of the D. Copyright Zansberg, Act, finding broadcast television off the air and retransmitted the programs to place or in separate places and at the same time that because AereoLevine sends Sullivaneach of itsKoch subscribers & or attheir different subscribers. times.” This “Transmit Clause” an individualized transmissionSchulz LLP of a performance was meant to overturn two Supreme Court cases from a unique copy of each copyrighted program, that had held that community-antenna television it is not transmitting performances “to the public,”

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Vol. 30 No. 3

Home > Publications > Communications Lawyer > 2014 > June 2014 > Courtside—Court To Determine the Fate of Broadcast Television

About Our Court To Determine the Fate of Broadcast Television Newsletter Communications Vol. 30 No. 3 Lawyer is published By Jessica Ring Amunson four times a year by Ms. Amunson is a partner in the Appellate and Supreme Court the Forum on and the Media and First Amendment practices at Jenner & Block Communications Law of the American Bar butLLP. Jenner is counsel rather to some of the petitioners in the ABC v. is engaged in tens of thousands of danger that quality programming will migrate from Association. It is Aereo case. available online to members of the On April 22, 2014, the Supreme Court heard oral arguments in a Forum. case that could decide the continued viability of broadcast Visit the Forum on television. In American Broadcasting Companies, Inc., et al. v. “private” performances.Communications Law broadcast television to pay services.” Aereo, Inc., the Court granted certiorari to address a seemingly More Publications from the Forum straightforward question of statutory interpretation involving a on Communications Law single clause of the Copyright Act: whether a company “‘publicly Author Guidelines performs’ a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over Contact Us the Internet.” How the Court answers that question will have Erin Remotigue enormous implications for the future of television. American Bar Association erin.remotigue@americ At issue in the case is the novel interpretation of the Copyright Upon receivinganbar.org the Second Circuit’s unfavorable Aereo argues that these concerns are irrelevant, Act advanced by Aereo. Under the Act, a copyright holder possesses the exclusive right “to perform the copyrighted work More Information publicly.” 1 In the 1976 Copyright Act, Congress provided that a public performance is one in which someone “transmit[s] or Editorial Board otherwise communicate[s] a performance or display of the work … Lee S. Brenner, Kelley decision,to the public, by means of any device or process, whether the the Drye & Warrenbroadcasters LLP promptly took their case unfounded, and overblown. And Aereo’s amici members of the public capable of receiving the performance or Dave Giles, EW Scripps display receive it in the same place or in separate places and at Co. the same time or at different times.”2 This “Transmit Clause” was Amanda M. Leith, NBC meant to overturn two Supreme Court cases that had held that Universal community-antenna television systems (the precursors to cable Forum Chair tosystems) were thenot publicly performing Supremewhen they captured Court. Somewhat unusually, when have their own warnings about the consequences Steven D. Zansberg, broadcast television off the air and retransmitted the programs to Levine Sullivan Koch & their subscribers. Schulz LLP the broadcasters filed their petition for certiorari, of the Court’s decision if the Court rules in favor 1 of 4 10/6/2014 10:22 AM Aereo actually agreed with the broadcasters that of the broadcasters. According to the Computer & the Supreme Court should hear the case. With Communications Industry Association, “[a]doption both parties in agreement as to the importance of of petitioners’ position would threaten one of the the issue, the Court set the case for argument on most important emerging industries in the U.S. April 22, 2014. economy: cloud computing.” Joining the Association in urging the Court to rule for Aereo are dozens of Not surprisingly given what is at stake, the case intellectual property professors, who argue that has attracted enormous interest from various Aereo’s service is the “functional equivalent” of a amici, who have weighed on both sides. Perhaps VCR because “consumers use it to record television the most important “friend of the Court,” the programs for subsequent playback to themselves.” Solicitor General, has filed a brief supporting the Aereo has also garnered support from the American broadcast networks. The Solicitor General argues Cable Association, which claims that its members that the scheme established by Aereo “violate[s] “welcome the development of new technologies the[] statutory requirements” of the Copyright Act that allow their customers to have better reception and “infringe[s] petitioners public-performance of free over-the-air local television broadcasts.” rights.” However, the Solicitor General cautions As the amici on both sides of the case have made that a “decision rejecting respondent’s infringing clear, there is a tremendous amount at stake here. As business model … need not call into question the we go to press, we are eagerly awaiting the Court’s legitimacy of innovative technologies that allow decision, which is expected by the end of June. consumers to use the Internet to store, hear, and view their own lawfully acquired copies of Endnotes copyrighted works.” Thus, the Solicitor General 1. 117 U.S.C. § 106(4). appears to be addressing concerns raised by some 2. Id. § 101. about the implication of the Aereo decision for 3. Brief of the United States at 12, American Broadcasting cloud computing services. Companies, Inc., et al. v. Aereo, Inc., No. 13-461 (March 3, 2014). Other amici filing in support of the broadcasters 4. Brief of the National Football League and Major League include organizations like the National Football Baseball at 23, American Broadcasting Companies, Inc., League and Major League Baseball, who warn et al. v. Aereo, Inc., No. 13-461 (March 3, 2014). the Court that if it allows services like Aereo to 5. Brief of the National Association of Broadcasters, et al. at retransmit broadcast programming—such as 23, American Broadcasting Companies, Inc., et al. v. Aereo, Inc., No. 13-461 (March 3, 2014). football and baseball games—without payment to 6. Brief of the Computer & Communications Industry anyone, it may be that the Leagues’ only “option Association, et al. at 3, American Broadcasting Companies, will be to move that content to paid cable networks Inc., et al. v. Aereo, Inc., No. 13-461 (April 2, 2014). (such as ESPN and TNT) where Aereo-like services 7. Brief of 36 Intellectual Property and Copyright Law cannot hijack and exploit their programming Professors at 1, American Broadcasting Companies, Inc., et al. v. Aereo, Inc., No. 13-461 (April 2, 2014). without authorization.” Similarly, the National 8. Brief of the American Cable Association at 3, American Association of Broadcasters and other organizations Broadcasting Companies, Inc., et al. v. Aereo, Inc., No. 13- warn that “Aereo’s free riding creates a substantial 461 (April 2, 2014).