The Supreme Court Performs the Right Notes for Dish in Aereo

Lee B. Burgunder · 17 Vand. J. Ent. & Tech. 4

Abstract

In American Broadcasting Companies, Inc. v. Aereo, Inc., the Supreme Court addressed whether a company publicly performs copyrighted works when it allocates separate antennas on its property to customers who individually decide what shows they each want to watch. This case was hotly debated because it provided a new opportunity for the Court to identify the responsible actors when copyrighted materials are transmitted over the Internet. Unfortunately, the Court ruled against Aereo without clearly articulating governing standards that might inform future decisions, relying instead on what the dissent called a “looks-like-cable-TV” approach. The deficiency has already provided additional ammunition for Fox Broadcasting Company to sue Dish Network over certain features that the satellite television provider proudly promotes to customers. This Article articulates some concrete benchmarks the Court could have used to substantiate its decision that would have highlighted the weaknesses in Fox’s latest copyright claims against Dish.