Trading Rabbit Ears for Wi-Fi: Aereo, the Public Performance Right, and How Broadcasters Want to Control the Business of Internet TV

Jacob Marshall · 16 Vand. J. Ent. & Tech. 909

Abstract

Aereo, a start-up company that allows consumers to stream free, over-the-air broadcasts to their phones and computers, seems rather innocuous. Yet the major broadcasting networks have attempted to shut Aereo down since its inception, claiming that Aereo infringes on their copyright. Aereo claims that its unique technology—where each user is assigned their own, individual antenna—ensures that Aereo does not infringe on the broadcasters’ public performance rights. The United States Supreme Court has granted certiorari on the matter.

The broadcasters are approaching the case as an existential battle, claiming that Aereo threatens retransmission fees, licensing fees broadcasters collect from cable companies. Broadcasters expect these fees to drive revenue growth over the next decade as advertising revenue stagnates. They claim that if Aereo is allowed to continue, cable companies will refuse to pay retransmission fees, destroying broadcast television.

This Note examines the broadcasters’ claims on two points. First, the Note considers whether Aereo threatens retransmission fees, arguing that broadcasters have already lost leverage with cable networks. Second, this Note argues that the test for public performance under the Copyright Act does not hinge on how the alleged infringement affects the market for a work and that Aereo’s service is a series of private performances.