In this age of instant gratification, it is no wonder roughly 19% of American households go without cable and turn to services like Netflix or Hulu that allow immediate viewing of cable TV shows, whenever it’s convenient for the viewer. Although the number of service providers offering alternatives to cable seems to be growing each day, those service providers were put on notice by a recent Supreme Court decision about the legality of their actions.
In American Broadcasting Companies, Inc. v. Aereo, Inc., the Supreme Court addressed the issue of whether Aereo’s service infringed on the television programmers’ copyrights and exclusive right to “perform” their copyrighted programs under the Copyright Act of 1976. Aereo sells a service that allows subscribers to view television programs over the internet at almost the same time that the programs are broadcast over the air by using small HDTV antennas to intercept the programs the moment they air and then transmit the shows to individual subscribers. Subscribers pay Aereo a fee to watch the television programs. Aereo has no contractual relationship with any of the cable programmers or broadcast companies.
ABC and other producers, marketers, distributors, and broadcasters who own the copyrights in many of the programs that Aereo’s system streams filed suit alleging copyright infringement. Under the Copyright Act of 1976, ABC and other copyright owners have the exclusive right to perform copyrighted work publicly and to prevent others from infringing on their copyrights. To the contrary, Aereo argued, among other things, that its operation was akin to a copy shop—merely providing the equipment to allow patrons to transmit copyrighted television programs to their screens—and that it did not transmit “publicly” since Aereo transmits to only one subscriber at a time. The Court, however, did not agree and held that Aereo, Inc. committed copyright infringement by transmitting a performance of the copyrighted works to subscribers.
This case solidifies, for now, broadcast companies ability to charge service providers like Netflix and others for the use of their copyrighted programs. This case also illustrates the law’s response to an evolving technology and the need for companies to carefully review emerging or new technologies for possible copyright infringement issues.
If you have a concern regarding a possible infringement by your technology or on your copyrighted work, e-mail or call one of the Conway, Olejniczak & Jerry Intellectual Property Team members at 920-437-0476.