United States: Copyright infringement, or just a new lawful way to watch television?

United States

Copyright infringement, or just a new lawful way to watch television?

Some may remember that there was a time when you had one chance to view your favorite television program.  If you were not home, or perhaps just fell asleep when your show aired, it was gone – not to be seen again until syndication many years later. The entertainment world forever changed in the 1970’s with the introduction of two dueling technologies: the Sony Betamax, and the VCR (or VHS).  These devices allowed us to record television programs, and then watch our recorded programs at any time.  Once recorded, we could fast forward (or skip) commercials.  Facing a possible loss of advertising revenue, and decreased demand for movie theater tickets, the entertainment industry filed a lawsuit arguing copyright infringement.

In 1984, the Supreme Court of the United States issued a landmark (albeit 5-4 split) decision in a case called Sony Corp. of America v. Universal City Studios, Inc. in which it held that the Betamax facilitated the copying of protected works, but that such copying fell within the fair use exception of the Copyright Act because “time-shifting” (recording a program to watch it at a later time) was a substantial non-infringing use.

The Supreme Court’s decision in Sony Corp. cleared the path for other technological advances.  New products such as the Digital Video Recorder (or DVR) have greatly simplified the recording and viewing process - remember the old painful multi-step programming of a VCR, not to mention that annoying flashing “12:00” every time power was disrupted.  Now with one button we can record an entire television season, or if you missed a series entirely, Netflix, Amazon and many cable providers stream these programs to multiple devices.

The Supreme Court will now hear the latest dispute involving unauthorized distribution of television broadcasts.  Several networks (ABC, CBS, Fox) filed a lawsuit against a company called Aereo.  Aereo has replaced the old “rabbit ear” television antenna with a tiny (the size of a dime) receiver that now resides in the “cloud” at Aereo’s facility.  Aereo assigns a unique receiver to each of its subscribers, who can use the receiver to either watch live television or to remotely record content onto a DVR for later viewing on a television, tablet or smart phone.  For $8 per month, subscribers can watch unlimited live television and record up to 20 hours of programming.

Aereo is accused of infringing the network’s exclusive right to publicly perform the works.  The networks fear a loss of re-transmission fees from cable television providers for the right to broadcast the same content.  The Supreme Court will decide whether to affirm the lower appeal court’s ruling which found that since a consumer is already allowed to privately view and record broadcast television, there is no reason why the result should be any different simply because the “rooftop antenna is rented from Aereo and its signal is transmitted over the Internet.”  The ultimate question is whether there is a public performance when “the potential audience for each Aereo transmission is the single user who requested that a program be recorded?”

The Aereo case is scheduled to be heard by the Supreme Court on April 22, 2014.