We Need to Talk About Aereo: Copyright-Avoiding Business Models, Cloud Storage and a Principled Reading of the 'Transmit' Clause

Abstract

Businesses are exploiting perceived gaps in the structure of copyright rights by ingeniously designing their technologies to fulfill demand for individual access through a structure of personalized copies and playback engineered in ways intended to implicate neither the public performance nor the reproduction rights. The archetypal example is Aereo Inc.'s system for providing online access to broadcast television. Aereo allows users to tune into individual antennae to stream TV to themselves, near-live, online. Aereo's activities look a lot like the retransmission of broadcast signals, an activity which Congress has made very clear must result in remuneration for rightholders. However, Aereo's careful design, which assigns each user her own antenna to generate an individual transmission copy from which she can access only the signals she could freely pick up from her own rooftop, means that it can also be argued that Aereo is simply enabling consumers to engage in legitimate non-remunerable uses. If the legality of this design is upheld by the Supreme Court this term, Aereo and subsequent comers will be able to offer consumers on-demand access to content, in a way that competes with licensed services, without any obligation to remunerate the rightholder.

Privilege Over Innovation: Sports Broadcasting, Mobile Television, and the Case of Aereo

“…Australia's most popular football competitions, the National Rugby League (NRL) and Australian Football League (AFL), claimed that a new cloudbased mobile television service, Optus' "TV Now," infringed their copyright and diminished the value of their digital and mobile coverage rights. While there are differences between media systems and rights regimes in Australia and the United States, the similarities between Aereo and TV Now are such that legal scholars have compared them directly (Foong, 2015), while others have written about both cases at length in separate articles (Giblin, 2012a(Giblin, , 2012bGiblin & Ginsburg, 2014. For those interested in the details of the Australian case that ran over the course of almost a year in 2011 and 2012, we recommend consultation with these sources and media studies commentaries that critically assess the implications of the court decisions and their news coverage for "mobile media sport" (Hutchins, 2014(Hutchins, , 2016.…”