Legend has it that cable television was originally invented during the 1940s as a means for isolated rural communities to receive over-the-air television broadcasts by siting a community antenna on the highest mountain, and then running cables down to the valley where the television audience (who could not otherwise receive the signal) resided. Of course, cable television has come a long ways since those early days, and subscribers now pay plenty of money to receive hundreds of channels.
But as the Internet has lowered the costs of content distribution, and the price of cable television keeps rising, consumers are starting to pursue various strategies for “cutting the cord.” One upstart in the field, Aereo, has taken a “back to the future” approach by leasing consumers their own individual television antenna to pick up over-the-air broadcasts, which can then be transmitted to them over the internet for viewing on any internet-connected device (place-shifting) and at any time (time-shifting). But is that legal? Or does enhancing consumers’ ability to watch television on devices without antennas violate the Copyright Act?
20 years ago, the Supreme Court told us it was legal to record broadcasts at home for later viewing (i.e., time-shift) in the Sony v. Universal Studios case. And last Friday, the Supreme Court granted the broadcasters’ petition for certiorari in ABC, Inc. v. Aereo, Inc., which seems likely to tell us if place-shifting business models (e.g., remote DVR services and the like) are legal.
So far, the argument for place-shifting has been winning. Aereo is based in New York City, and its initial offerings were for over-the-air broadcasts there. As soon as Aereo opened its doors for business, broadcasters sued. The Second Circuit (which includes New York) had already decided in the 2008 Cablevision case that place-shifting (via a remote storage DVR system) did not infringe copyright. Hence, it was not surprising that, in April of this year, the Second Circuit sided with Aereo, and against the broadcasters, in holding that Aereo’s services were also non-infringing.
Aereo is so confident of its position that it supported the broadcasters’ petition for review by the Supreme Court. With Justice Alito having recused himself on this case, it is not hard to imagine a 4-4 split, which would result in the Second Circuit being affirmed. So it looks like we will know by summer if the Supreme Court is going to find that place-shifting of broadcast content is also lawful, non-infringing activity. Stay tuned.