This is a complicated legal case. Three Courts of Appeals have reached conflicting decisions:
- Aereo won in the First (Boston) and Second (New York) Circuits
- Plaintiffs won in the Tenth Circuit (Denver)
When two Courts of Appeals reach conflicting decisions, the Supreme Court has the final say.
CNNMondey published an excellent summary of the case today (April 21) by Fortune staff writer Roger Parloff, Senior Editor, Legal Affairs:
| Why the Supreme Court might pull the plug on Aereo | | FORTUNE -- For two remarkable years the tiny company Aereo, | which delivers broadcast TV to smartphones, tablets, and PCs, | has walked through the valley of the shadow of death. | | Armies of litigators, hired by the nation's largest media | giants, have bombarded it with lawsuits, accusing it of | flagrant copyright infringement. All the while, Aereo has | protested its innocence. It's been cleverly engineered, | it insists, to slip through the cracks of the copyright | regimen the broadcasters are invoking, and -- | superficial appearances notwithstanding -- it is therefore | operating completely on the up-and-up.
The author cites the 1968 Supreme Court decision in which it determined that Cable TV companies were not violating copyright law by retransmitting broadcast stations. But he seems to have omitted the underlying reason for the Court's decision: the copyright act in force in 1968 had not been revised since 1909. For obvious reasons, the Copyright Act of 1909 did not say anything about television, much less cable television.
See my comment at the end of this article:
But things have changed since 1968. Congress revised the copyright act in 1976 and included very specific language regarding the retransmission of broadcast signals. The Fortune author emphasizes this:
| The trouble, from Aereo's perspective, with these favorable | Supreme Court precedents concerning business models quite | similar to its own, is that Congress explicitly overturned | both of these rulings in 1976, and did so in very broad | terms. It said that henceforth it was bestowing upon | copyright holders an exclusive right over transmissions of "a | performance or display" of their work "to the public, by | means of any device or process, whether the members of the | public capable of receiving the performance or display | receive it in the same place or in separate places and at the | same time or at different times."...
So now it's up to the Supreme Court to decide if Aereo's separate-antenna/separate stream loophole violates the Copyright Act of 1976.