We (Still) Need to Talk About Aereo: New Controversies and Unresolved Questions After the Supreme Court's Decision

Abstract

Recent judicial interpretations of U.S. copyright law have prompted businesses to design technologies in ways that enable the making and transmission of copies of works to consumers while falling outside the scope of the owner's exclusive rights. The archetypal example is Aereo Inc.'s system for providing online access to broadcast television, which the Supreme Court has now ruled results in infringing public performances by Aereo.

In previous work we urged the Court to develop a principled reading of the transmit clause focusing on the particular use rather than on the technical architecture of the delivery service (Giblin & Ginsburg, 'We Need to Talk About Aereo: Copyright-Avoiding Business Models, Cloud Storage and a Principled Reading of the "Transmit" Clause' http://ssrn.com/abstract=2443595). Although we approach copyright law and policy from very different perspectives, we unite in the view that it is undesirable for legal outcomes to depend so heavily on technical design. Here, we evaluate the extent to which the Supreme Court was successful in reducing the law's vulnerability to technological exploitation, consider the ramifications of the decision for other technology providers and users, and debate the merits and weaknesses of the decision.

Keywords: aereo, transmit clause, to the public, public performance, anti-regulatory code, volition, copyright, intellectual property

JEL Classification: K10