Aero: Retransmission Fails to Transmit

Michael W. Taylor, October 27, 2014

In the United States, the copyright owner of motion pictures and other audiovisual works  has exclusive rights to perform the copyrighted work publicly. Exclusive rights in copyrighted works may be found in 17 U.S. Code § 106(4).

In a case with far-reaching implications for entertainment and technology businesses, the United States Supreme Court ruled June 25, 2014 that Aero, Inc., which provides a television streaming service, had violated copyright laws by capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee. The copyright act states that to perform or display a work “publicly” means to transmit the work to the public, by means of any device or process, Aero allowed subscribers to watch over-the-air television broadcasts on devices such as smart phones, tablets or computers. Aero thought it had exploited a loophole in the “public” transmission of copyrighted material by providing individual, user-initiated transmissions to avoid liability under applicable copyright law. U.S. patent no. 8,787,975 to Aero discloses a system that utilizes subarrays of antenna elements for receiving over-the-air broadcasts accessible by users over a network connection.

This is a victory for broadcasters. The broadcasters contended that Aero and similar services threatened to cut into a vital revenue stream, which is the billions of dollars they receive from cable and satellite companies in retransmission fees. A retransmission fee is money paid to networks for the right to retransmit their programming.