Under what circumstances does a copyright owner's exclusive public performance right extend to retransmissions of television broadcasts that embody the copyrighted work? In Aereo (ABC, Inc. v. Aereo, Inc., cert. granted, 134 S.Ct. 896 (U.S. Jan. 10, 2014) [lexis.com subscribers may access Supreme Court briefs for this case]), the Supreme Court has been asked to determine whether recording a television broadcast and then streaming it a few seconds later to an individual recipient can constitute an unauthorized public performance. I. Overview For a monthly fee, Aereo transmits broadcast television to its New York City subscribers over the internet without the consent of the parties that own the copyright in the television programs. In an attempt to avoid liability for the unauthorized public performance of copyrighted works, Aereo modeled its system after a system which the Second Circuit held to be non-infringing in Cartoon Networks LLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (the Cablevision case) [an enhanced version of this opinion is available to lexis.com subscribers]. As a crucial step in this strategy, Aereo recorded a unique copy of each broadcast requested by a subscriber, and began streaming that copy to the requesting subscriber just a few seconds after the recording commenced. Several copyright owners sued Aereo for infringement of the reproduction right, infringement of the public performance right, and contributory infringement. The plaintiffs then moved for a preliminary injunction barring Aereo from transmitting programs to its subscribers while those programs were still being broadcast. The district court denied this motion, finding that, in light of Cablevision, the plaintiffs were unlikely to succeed on the merits. On appeal, the Second Circuit held that, under Cablevision, Aereo's transmissions were not public performances. District courts in two other circuits, however, have examined the same system and found that the unauthorized transmissions were public performances. See Fox Television Stations, Inc. v. BarryDriller Content Sys., 915 F.Supp.2d 1138 (C.D. Cal. 2012) [enhanced version]; Fox Television Stations, Inc. v. Filmon X LLC, 2013 U.S. Dist. LEXIS 126543 (D.D.C. Sept. 5, 2013) [enhanced version]. Accordingly, the Supreme Court's decision in Aereo is expected to clarify the scope of the public performance right with respect to unauthorized transmissions. II. Aereo's Technology Aereo has placed thousands of small antennas on its Brooklyn rooftop in order to pick up broadcast signals from local New York television stations. When an Aereo subscriber selects a television program to watch or to record, Aereo's antenna server assigns an individual antenna to that subscriber for the duration of the program. While the antennas operate independently of one another, at any given time several of them may be receiving the same broadcast simultaneously if multiple subscribers have requested it. If the subscriber wishes only to record the program for later viewing, Aereo records the program and then stores that unique copy for the subscriber, who can request playback of his or her unique copy at a later time. Alternatively, if the subscriber wishes to view the broadcast in real time, Aereo will still record a unique copy of the broadcast as it is captured by the antenna, but it will begin playing that copy back to the subscriber after only a six or seven second delay. Thus, the subscriber begins watching the program while it is still being recorded. As a result, the subscriber views the broadcast almost in real time, but is actually watching a playback of his or her unique copy.
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