It’s that time of year again in Washington, D.C. The birds are chirping, the cherry blossoms are blooming, the heat and humidity are rising, and the Supreme Court’s issuing the final decisions of the year. This morning, the U.S. Supreme Court issued its 6-3 decision in American Broadcasting Companies v. Aereo.* Justice Stephen Breyer wrote for the majority, while Justice Antonin Scalia dissented. The Court’s opinion found that Aereo infringed TV broadcasters’ exclusive public performance rights under the Copyright Act (1976) by allowing subscribers to stream content (watch TV programs online) which other viewers watch the same programs on TV. Aereo’s technology involved the use of many mini antennae to essentially tap into an existing TV broadcast of a show, copy that show to a computer folder for the subscriber, and stream that show to the subscriber online in real time. So you could subscribe to Aereo, pick your show (say, Downton Abbey on PBS), and watch it online while other people were watching it at home on TV.
The Court found that Aereo violated the Copyright Act by publicly performing TV shows that only the TV broadcasters had rights to publicly perform. The Court saw Aereo as not a mere “equipment provider,” but “overwhelming[ly]” like and “highly similar” to a cable TV company, providing shows on demand, “targeted by the 1976 amendments [to the Copyright Act.]” The decision isn’t a huge surprise given the skepticism several Justices expressed at oral argument of Aereo’s business model. So Aereo’s fledgling business model is either shut down upon being declared illegal, or its development and evolution is dependent on what Justice Scalia calls “good lawyers” (“what we have before us must be considered a ‘loophole’ in the law. It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes. Congress can do that … in a much more targeted, better informed, and less disruptive fashion that the crude ‘looks-like-cable TV’ solution the Court invents today”) (Slip Dissent at 12).
Justice Scalia’s dissent argues that Aereo isn’t really like a cable TV company. He says Aereo doesn’t perform TV shows because it doesn’t choose the content (Aereo subscribers choose their individual content). He’s also concerned that the Court’s “cable-TV-lookalike rule” is “nothing but the’ol’ totality-of-the-circumstances test” – e.g. there’s no clear rule for whether a cloud or cable TV service does (or doesn’t) violate the broadcasters’ public performance rights.
Taking a step back from Aereo, part of the issue involves the Copyright Act’s age (38 years old) vis-a-vis the extremely rapid development of technology. In the proverbial phrasing, the Copyright Act is my grandfather’s copyright law – I have his marked up copy of the 1976 Copyright Act from his law practice. Yes, the copyright law has been interpreted to try and keep up with the times (e.g. email, YouTube, the Internet, the cloud, Facebook, etc). But the law’s terms of art and concepts haven’t changed much (if any) since 1976. I have a deep respect for history and tradition, but, given the state of the copyright art (or patent art) in 1976 vis-a-vis 2014, one must ask if a nearly 40 year old conception of technology still works today. The technological world, and the potential universe of copyright protection, has changed dramatically in the past year or two, let alone the past 40. In 1976, personal computers, email, mobile phones, digital cameras, texting, social media, Facebook, LinkedIn, Instagram, YouTube, video and file sharing didn’t exist. Businesses and people used typewriters, landlines, TV, and the U.S. Mail. We’ve come a long way as a society, some industries have been shaken, and others have come of age. And yet, our copyright laws may not reflect the brave new technological world we live in, the new economies of content and IP. Perhaps it’s time for Congress to take Justice Scalia’s hint and update the copyright law for our new century?
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(c) 2014, Stephen M. Johnson, Esq.
* Justice Breyer, a former Harvard Law professor, wrote a law review article called “The Uneasy Case for Copyright” (1970). Justice Breyer’s opinion was joined by Chief Justice John Roberts, and Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justice Antonin Scalia’s dissent was joined by Justices Clarence Thomas and Samuel Alito.