Aereo finds itself before the 2nd Circuit on charges of copyright infringement. At issue is whether the service performed by Aereo, which supplies its users with personal antennas to access over-the-air TV signals, constitutes a private performance or a public performance. Aereo has been arguing that its services are innovative but not infringing of copyright laws. Aereo enables users to watch television broadcasts over the Internet without compensating the television broadcasters. Fox, ABC, NBC, and CBS filed complaints earlier this year saying that Aereo’s service violated their copyrights and that Aereo must be immediately shut down. Judges during the 2nd Circuit hearing questioned whether Aereo wasn’t using its technology to skirt copyright law.

One judge asked Aereo’s attorneys whether Aereo’s services would be more efficient if Aereo used one giant antenna to distribute signals instead of providing personal antennas to each subscriber. Aereo’s attorney acknowledged that Aereo had built the smaller antennas in order to comply with copyright laws and not for business or other technological reasons. An earlier case heard by the same court found that replaying shows to an original audience wasn’t a public performance. Cablevision, the defendant in the earlier case, was sued by the same broadcasters that are suing Aereo. The appeals court found in favor of Cablevision and ruled that the copying of content by individual users was not copyright infringement and that replaying shows to an original audience (time shifting) wasn’t a public performance.

The Copyright Act grants the copyright owner the right of public performance. This includes the right to authorize or control public performance. To be infringing, a defendant must have performed the work publicly. A public performance occurs “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” 17 U.S.C. §101. It must be noted however, that a copyright owner’s right of public performance is not limited to live performances. The right extends to broadcasting of television and radio programs by radio and television programs and the rebroadcasting of radio and television programs. The transmission of a performance to a place where a substantial number of persons is gathered or where members of the public are capable of receiving the performance or display at the same place or in a separate place is also considered to be a public performance. Private performances are not actionable.

Source: http://rbr.com/second-circuit-court-of-appeals-critical-of-aereo/

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