## Facts

- Broadcast networks and related copyright owners held copyrights in many television programs transmitted over the air.
- Aereo sold subscriptions allowing users to watch near-live over-the-air broadcasts via the internet and to store programs for later viewing.
- Aereo used a facility with many small antennas and servers; when a user selected a program, Aereo tuned an assigned antenna to the broadcast, converted the signal to internet-streamable data, saved it in a user-specific folder, and streamed it to that user shortly after the broadcast began.
- The copyright owners alleged Aereo functioned as an unlicensed retransmission service that substituted for cable retransmission arrangements.
- The copyright owners sued for infringement of the exclusive right to publicly perform copyrighted works and sought a preliminary injunction.
- The district court denied the injunction, and the Second Circuit affirmed, concluding Aereo’s one-to-one transmissions from user-specific copies were not “to the public.”
- The Supreme Court granted review.

## Issues

1. Whether Aereo “performs” copyrighted television programs when its system captures broadcast signals and streams them to paying subscribers at the subscribers’ direction.
2. Whether Aereo’s transmissions are performances “to the public” under the Copyright Act’s Transmit Clause when each transmission is made from a user-specific copy to a single subscriber.

## Decision

- The Supreme Court reversed the Second Circuit and remanded.
- The Court held Aereo “performs” the copyrighted works because it operates a service that transmits the programs to subscribers, not merely user-controlled equipment.
- The Court held Aereo’s transmissions are “public” performances because it communicates the same contemporaneously perceptible images and sounds to multiple unrelated subscribers, regardless of the use of separate antennas, copies, or discrete one-to-one transmissions.
- The Court described its holding as limited to services that closely resemble cable systems by retransmitting broadcast television to paying subscribers.

## Legal Principles

- Under 17 U.S.C. § 106(4), copyright owners have the exclusive right to perform their works publicly.
- Under the Transmit Clause in 17 U.S.C. § 101, a performance is public when a service transmits a performance “to the public” by any device or process, even if recipients receive it in separate places or at different times.
- A service can be the “performer” when, in substance, it captures broadcast programming and retransmits it to subscribers as a commercial offering, rather than merely supplying passive equipment.
- A transmission may be “to the public” when a service communicates the same performance to multiple unrelated subscribers, even if the service uses individualized copies or makes separate transmissions to each subscriber.
- The Court did not decide how the public-performance right applies to other technologies not closely analogous to cable-style retransmission.

## Conclusion

The Court concluded that Aereo’s near-contemporaneous internet retransmission of over-the-air broadcasts to paying subscribers constitutes an unauthorized public performance under the Copyright Act’s Transmit Clause, even though Aereo used individualized antennas, copies, and one-to-one streams.


Am. Broad. Cos. v. Aereo, Inc., 573 U.S. 431 (2014)