Brief of Amici Curiae Small and Independent Broadcasters in American Broadcast Companies, Inc. v. Aereo, Inc., No. 13-461

Contrary to Petitioners’ assertions, not all broadcasters oppose Aereo’s platform for enabling individual audience members to use an antenna to initiate their own recording and reception of over-the-air programming for personal viewing. In fact, many small and independent broadcasters (SIBs) depend heavily on such user-friendly viewing technologies to reach their audiences, especially audiences that cannot afford home viewing equipment, cable, or satellite television, audiences who only watch broadcast content via mobile networks or the Internet, or audiences who may not be technologically sophisticated enough to set up their own antenna, digital receiver, or digital video recorder, and configure their own mobile devices. In addition to furthering technological innovation, platforms such as Aereo provide cost-efficient ways for SIBs to expand their viewing audiences and maximize their content offerings, all in line with the goals of the Copyright Act of 1976.SIBs play a unique role for today’s television audiences by disseminating diverse content that is commonly overlooked by larger television providers. As the Court decides whether Aereo’s technology enables a private or public performance, it should take into account the important role that SIBs play and the needs of the audiences they serve. For example, Amicus Cocola Broadcasting in Fresno, California plays a key role in providing specialized content to Fresno’s sizable Hmong population – content that Petitioners fail to provide. The Hmong, an ethnic group from Southeast Asia that came to the United States in large part to flee persecution, continue to speak their native language. Despite the large Hmong population in Fresno, the major network broadcasters, cable, and satellite providers in the region do not carry Hmong-language content. One of Cocola’s local stations, however, not only carries Hmong-language programming, but also content created by Fresno area Hmong producers. Hmong programming can currently only be seen over the air via Cocola’s independent broadcast towers. Yet not every viewer interested in Hmong programming has an antenna in their home. Were Aereo’s innovative platform available in Fresno, any interested viewer could choose to tune an Aereo antenna to one of Cocola’s stations, make a recording, and privately watch that program on her mobile or networked device. Such technologies provide for a dramatic expansion of the potential audience for such unique content. Also contrary to Petitioners’ assertion of harm, certain broadcasters – namely Amici SIBs – feel that technologies such as Aereo improve their financial outlook by helping to disseminate diverse content and to take advantage of changing trends in viewership. By enabling audience members to initiate a recording of over-the-air television by antenna and view it via the Internet, Aereo enables individual audience members who are not currently receiving SIB content to find it, record it, and watch it. For example, once Aereo became available in Cincinnati, Ohio, small broadcaster WKRP began actively promoting the use of Aereo to expand viewership and increase interest among viewers who were otherwise unable to receive WKRP’s signal clearly. This type of viewer access is particularly important for economically challenged viewers who cannot afford both Internet and expensive home viewing equipment, cable or satellite subscriptions.Copyright’s “public” versus “private” distinction seeks to advance certain goals associated with copyright law – that is, broad dissemination of and access to diverse creative content, increased innovation, and individual viewer autonomy. It is important that the Court consider these underlying goals and their relationship to SIBs in interpreting the statutory language, “to perform a work ‘publicly,’” so that the Court’s application is aligned with the spirit of the Copyright Act.In 1984, this Court held that Sony was not liable for contributory infringement because its Betamax video recording-and-playback technology enabled and expanded private home viewing capabilities for the public at large. Sony Corp. of Am. v. Universal City Studios, Inc. (Betamax), 464 U.S. 417, 454 (1984). The broadcast television industry faces a similar moment in time with a different new technology: Aereo. Similar to the Betamax, Aereo also expands the audience for private television viewing, not only of major broadcaster Petitioners but also of Amici SIBs. For all of the above reasons, this Court should find that Aereo enables individual audience members to initiate private recordings and viewings that further important purposes of copyright law.* This brief was prepared with the assistance of NYU Law clinical students Ilyssa Coghlan and Rafael Reyeni under the supervision of Professor Jason Schultz.