Document Type

Working Paper

Publication Date

2014

Center/Program

Kernochan Center for Law, Media and the Arts

Abstract

Aereo was a US-based service that made unique copies of broadcast programs from individual antennae for each requesting user, for individual retransmission near-live or at some point in the future. To the uninitiated, it makes no sense for a company to design a television transmission service that utilises thousands of tiny antennae and thousands of copies to deliver signals to users. Wouldn’t it be much more efficient to use just one of each? And surely, when it comes to copyright liability, wouldn’t more copies result in more infringement, not less? However, Aereo’s strategy made a lot of sense when viewed through the prism of US copyright law as then interpreted. In this paper we argue that US judicial decisions focusing on the “wrong” questions in assessing liability for copyright infringement directly encouraged Aereo’s business model. We then discuss the Supreme Court’s recent ruling that Aereo’s transmission of signals “near-live” does fall within the scope of the exclusive right of public performance, and argue that, in correcting the Second Circuit’s erroneous inquiries, the Supreme Court raised some “wrong” questions of its own. We also examine the legal responses to Aereo’s predecessors in Singapore, Japan, Australia, Germany, France and the EU to determine whether similarly “wrong” questions have distorted copyright analysis elsewhere. Finally, we use the insights from that international study and Aereo to identify what the “right” questions might be.

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