Aereo and FilmOn: Technology’s Latest Copyright War and Why Aereo Should Survive

Table of ContentsI. Introduction 2558II. Explaining the Technology at Issue 2562A. Aereo's Technology 2562B. The Aereo User's Experience 2564C. Differences Between Aereo and FilmOn 2565III. Relevant Legal Background of Copyright Law 2566A. 1976 Copyright Act 2566B. History and Precedent of the Public Performance Right Before 1976 2569C. Congressional Intent of the 1976 Copyright Act 2572D. Relevant Case Precedent Leading Up to Cablevision and Aereo 2574IV. Diverging Case Law Leading Up to the Supreme Court's Decision 2578A. Second Circuit 25781. Cablevision 25782. Aereo I-Southern District of New York 25813. Aereo II- Second Circuit 25824. WPIX, Inc. v. ivi, Inc 2584B. U.S. District Court for the Central District of California 2585C. U.S. District Court for the District of Columbia 2587D. U.S. District Court for the District of Massachusetts 2588E. U.S. District Court for the District of Utah 2589V. The Problem with Public Performance Rights 2590A. Broadcast TV over the Internet Violates Public Performance Rights 25901. Interpreting the Transmit Clause 2590a. Scholars' Interpretations 2590b. Applying a Different Interpretation 25932. The Problems with the Second Circuit's Interpretation of the Transmit Clause 2595B. FilmOn's Differences Make It Less Likely to Be Lawful 2598C. The Supreme Court's Decision on Aereo 2600D. The Underlying Public Policy of Copyright Requires Aereo to Survive 2602VI. Conclusion 2606I. IntroductionTV as we know it is changing, but the courts and Congress again face the issue of how copyright law should adapt.1 As cable providers and broadcast networks battle over retransmission fees and the cost of cable TV increases, Internet TV becomes more popular.2 Cable providers try to compete in the Internet TV market by offering live and on-demand programming accessible over the Internet but struggle to compete with the variety of online video delivery.3 Some companies, such as Sony, Google, and Amazon, considered plans for Internet TV that would be similar to cable TV.4 However, two companies, Aereo and FilmOn, began offering broadcast TV over the Internet in 2012.5 As viewers abandon cable TV for Internet programming, broadcast companies must fight to find profits through existing copyright law.6 Broadcasters won a monumental battle against Aereo in American Broadcasting Cos. v. Aereo, Inc.,1 which forced the company to suspend its service.8 The U.S. District Court for the Southern District of New York found FilmOn in contempt of court for attempting to offer Boston broadcasts,9 and after a brief stint offering local channels for a fee, FilmOn ceased offering any live local broadcast channels.10Aereo and FilmOn did not license shows or pay retransmission fees.11 Aereo and FilmOn captured airwave broadcasts through antennas, copied the data, and transmitted it to customers via the Internet.12 Broadcasters did not profit from Aereo and FilmOn's services as they do from cable companies, and as a result, broadcasters filed claims for copyright infringement in several district courts.13 The Second Circuit is the only court of appeals that issued an opinion and ruled in favor of Aereo based on Second Circuit precedent interpreting the Copyright Act provisions at issue.14 The Supreme Court, however, overturned the Second Circuit without even mentioning the precedent the Second Circuit relied on, finding that Aereo operated too much like a cable system.15 Aereo and FilmOn's next approach argued that they are cable companies and thus entitled to compulsory licensing under the same Act the Supreme Court found Aereo to violate.16As technology changes, intellectual property law must change with it, but the law cannot grow as quickly as technology.17 The U.S. Constitution specifically gives Congress the power to protect, "for limited times," creators' exclusive rights to their "writings and discoveries. …