Antonin Scalia

Supreme Court Rules 6–3 Against Aereo

A setback for tech freedom.


The life of a repo man is always intense.
Garry Trudeau

For about two years, a New York–based business called Aereo has offered a useful service: It receives local TV broadcasts on thousands of tiny antennas, stores the programs on DVRs, and transmits them on demand to subscribers' laptops, tablets, and phones. Today the Supreme Court told the company to cut it out: Reversing a lower court's decision, it ruled 6–3 that Aereo's activities violate copyright law.

The big broadcasters don't like Aereo because it doesn't pay the fees that cable and satellite companies pony up for the right to retransmit programs. So they sued, claiming that Aereo's efforts amount to a public performance of their copyrighted material. During oral arguments, Aereo attorney David Frederick argued that this characterization of the company's activities was wrong, and that it was merely "providing antennas and DVRs" that let consumers do things that are legal.

The Court sided with the broadcasters. Writing for the majority, Justice Stephen Breyer points out that Congress amended the Copyright Act for the specific purpose of treating cable broadcasts of local TV channels as performances. What Aereo has been doing, Breyer concludes, is similar enough to qualify as a performance too. Frederick had argued that even if this were so, that would not make its service a public performance, since each transmission is received only by the user who requests it—a private transaction. The Court was unpersuaded, deciding that in practical terms this was still fundamentally the same as cable.

Justice Antonin Scalia's dissent—which was joined by justices Clarence Thomas and Samuel Alito—calls this an "improvised standard" that amounts to "looks-like-cable-TV." The dissenters deny that the company engages in a performance at all, let alone a public one. An Aereo transmission "undoubtedly results in a performance," Scalia writes, but "the question is who does the performing." If the answer to that question is unpalatable to the TV industry, the "proper course is not to bend and twist the [Copyright] Act's terms in an effort to produce a just outcome, but to apply the law as it stands and leave to Congress the task of deciding whether the Copyright Act needs an upgrade."

For more on the issue—and on what's coming next—here is a Reason TV video from earlier this month:

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  1. The peeps on HN are shitting their pants over the fact that the evil, extremist right-wing justices were on the right side of this.

    1. by way of a Nilay Patel tweet (that MIke Masnick retweeted) I found myself reading the tweets of @sarahjeong She seems to be a young Harvard educated lawyer who writes on technology issues. One of the tweets today was

      “Its emotinally devastating to agree with a Scalia dissent”

      Not knowing her history, I would assume that she was being ironic, but I am not certain.

  2. So if they just sell the antennas and server space rather than lease it, then charge a maintenance fee to users, would that be legal? It’s not any of their equipment doing the receiving, storing, or transmitting then…

  3. Now the standard for copyright infringement has been extended to “if you look like a cable company to the SCOTUS.”

  4. The goodies have been announced.

    Everyone at Google I/O will receive:

    * A cardboard tablet case (…?)
    * An LG G Watch or Samsung Gear Live (smartwatch)
    * An IOU for a Moto 360 (another smartwatch)

    1. Have you seen anyone from the Empire there?

      Today’s protest is led by the Service Employees International Union, United Service Workers West (SEIU-USWW), which says that they are calling on Google to work with its security workers on a new contract.

      Darth Vader Clad Protesters Swarm Google I/O Conference

  5. ” but to apply the law as it stands and leave to Congress the task of deciding…”

    Wow, rule of law. They seem to get religion at the strangest times.

    1. Unfortunately, only 3 of them.

  6. This goes in the “Things that are legal to do for free, but become illegal once you are paid for it” category right?

  7. Seems pretty cut-and-dry. If the cable companies have to pay to rebroadcast free over the air TV, so should Aereo. The cable companies are just providing the antenna and a really big DVR with no record or rewind function.

    Of course, my solution would be that cable TV companies don’t have to pay either, if you send out your signal for free.

    1. If it was that cut-and-dry, it wouldn’t have made it so far or been decided 6-3.

      The cable companies have one antenna (or satellite feed or whatever) per channel. Aereo has an antenna for each customer.

    2. If the cable companies have to pay to rebroadcast free over the air TV, so should Aereo.

      I rebroadcast DVRed network TV shows all the time over my (home) wifi network. To the other TV in my house, true, but there’s no technical reason why I couldn’t let my neighbor into my network so they could also watch the shows.

    3. This is the taxi owner argument.

      “It’s not fair that they aren’t hobbled by the same rules that we erected to keep out competition and artificially increase the value of our product.”

      If the OTA broadcasters don’t want me doing something with their signal that they don’t approve of, then they should keep it out of my house.

  8. So, if I own a DVR, and I record shows and then watch them myself, that’s a “private” performance.

    Remember that the cable/satellite companies lease DVRs and sell DVRs. You can use a DVR that you own, regardless of whether you got it from the content provider. So, that distinction can’t be what they are hanging their robe on, here.

    What if I have some people over and we watch a DVRed show? Is that a public performance? Where do you draw the line?

    Remember, under copyright law, it makes no difference whether you charge or not.

    This strikes me as an incoherent standard that the majority cooked up.

    1. I am struggling with this specific implementation of technology. So let’s go back to the beginning with betamax.

      So you start with an antenna, a receiver (a tuner and a signal-processor), and a recorder (the betamax). So SCOTUS said I can record an over the air broadcast and play it back to myself at any later time. I can take the media that I created play it back through my recorder to a display (which may be packaged with the receiver in a TV).

      Does the original ruling allow me to:

      1) Record on one device and play back on a different device? e.g., I have two VCRs at home and record on one then playback on the other. I don’t think that is a violation of copyright.

      2) Take my recorded media to a different location and playback at that location? e.g., Record a movie at home, then play it back at a party some where else. That is starting to sound like a public peformance to me.

      1. 3) Has slingbox been challenged in court yet? This product lets me record at home then rebroadcast to myself anywhere in the world.

        If slingbox is legal, why isn’t Aereo? It’s is the same basic set up. I have an antenna, a receiver, a recorder, and a broadcast mechanism to myself.

        1. I would assume slingbox would side with the broadcast companies because Aereo would be cutting into slingbox’s business.

          1. The only difference between Aerro and Slingbox is the location of the installed antenna, receiver, and recorder. That is a terrible distinction to base copyright law on.

            1. All copyright law is based on terrible distinctions.

  9. So, based on this ruling, if I let a neighbor tap into my rooftop antenna I’m running a cable company?

    1. It appears so.

    2. Only if you charge him for tapping in, I guess.


    3. Well, yes. That’s pretty much what cable companies were when they started out.

    4. No. Only if your neighbor records it and retransmits it to you… or has it available to retransmit to many thousands of people upon request or for a fee.

      Yes, sending data over a network cable is also a retransmit.

  10. So can someone simplify this decision for me? Maybe with some simple diagrams?

    Here’s how I understand it:

    Big broadcasters broadcast. Cable/Satellite companies re-transmit. Cable/Satellite companies charge consumers with a monthly fee (essentially renting to consumers the rebroadcasting rights they pay broadcasters for) and an install rate for hardware.

    The individual consumer can install his/her own hardware and pick up any channels broadcasted over the air for free? Why don’t more people do their own install work and not pay Timewarner or Comcast or Charter?

    Aereo was essentially picking up the channels being broadcasted over the air, as an individual consumer could, but then they were charging to rebroadcast to the consumer? Essentially circumnavigating the fees the broadcasters charged local cable/satellite companies?

    1. Aereo was essentially picking up the channels being broadcasted over the air, as an individual consumer could, but then they were charging to rebroadcast to the consumer?

      It is NOT rebroadcasting. It’s akin to me paying a neighbor for use of his land to set up my own TV antenna on it because his property gets better reception than mine.

      1. Yeah, this one’s touchy.

        I’m old enough to remember the days before there was even an internet, and the legal tags on television station programs was always pretty clear: (paraphrased) This program may not be retransmitted etc. etc.

        Now we can nitpick over the ‘rebroadcast’ but Aero was definitely on the line if not over it.

        Sure, I can plug my TV into my neighbors antenna. But that’s a single-step of program reception. I have not requested my neighbor record the broadcast, then send it to me either again over the air or over a wire connected between us.

        That once-removed step is where the ‘rebroadcast’ comes in.

  11. Come on. This a just question of free-riding. It was settled already with respect to the cable cos, and now with respect to the Internet. If you want to argue against it, you’ll have to argue there’s no free-riding and for Social Darwinism, even against private property. Laws makes sense when they reflect consensus. This company needs to pay to rebroadcast the networks property.

  12. We need more of Alito, Thomas, and Scalia. They’re not perfect, but man they’re the best of that bunch for sure.

  13. Aereo’s entire business model was based on rebroadcasting copyrighted materials for a profit without paying those who owned the copyrights. The mechanism they chose to do this with is irrelevant. The bottom line is they didn’t own the material or rights to rebroadcast, and they were thus in violation of copyright. Copyright is a basic fundamental human right, and it can’t be bypassed just by using a technological gimmick. The court’s decision reaffirms that the Fair Use doctrine can not be tortured into allowing someone to profit at the expense of the copyright owners.

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