The majority 6-3 decision written by Supreme Court Justice Stephen Breyer in the Aereo case serves to plug a hole in the Copyright Act by preventing the start-up company from transmitting its signals via thousands of tiny antennas to its subscribers. Breyer’s majority decision, which will likely put Aereo out of business, relied on analysis of legislative intent when Congress amended the Copyright Act.
When statutes are ambiguous as to what is intended when the facts of the case do not quite match the wording of the law, courts will often attempt to determine what the legislative body meant to do. The dissenting opinion written by Justice Antonin Scalia acknowledges that Aereo should not be permitted to operate its business in its current fashion, but Scalia and the other members of the more conservative wing of the Court felt the responsibility to “fix” the law to cover the Aereo situation lies with Congress and not the courts.
The dissenting votes are consistent with a long running debate among the Supreme Court justices regarding the proper role of courts. The more liberal justices will generally decide the case based upon what should be the “right” result in the particular situation, and the conservative leaning justices feel the courts should only act to interpret the actual laws in existence and prefer to leave any “fixing” to Congress.
The service provided by Aereo, Inc. uses cloud technology to allow subscribers to access otherwise free broadcast content in their homes through tiny antennas installed in the their homes. The subscribers make a copy of the program via their antenna, Aereo stores the copy in the cloud, and then the customer can access the stored content through the use of another antenna. The particular show can be broadcast to the subscriber at about the same time the show airs on the applicable network.
Justice Breyer’s majority decision analyzes what kind of activities Congress sought to prohibit when amending the Copyright Act of 1976. In the Fortnightly case decided prior to the amendment to the Copyright Act, the court decided that a cable company receiving a signal via a large antenna and then sending the signal to cable subscribers was not transmitting a performance in a way which violated copyright law. Congress responded by amending the Copyright Act to broaden what is a prohibited public performance of a copyrighted work. Breyer concluded that the actions of Aereo are similar to the actions Congress sought to prohibit when amending the Copyright Act. In essence, while not fitting exactly within prohibited conduct in the Copyright Act, the Supreme Court’s 6-3 decision in the Aereo case plugs a hole in the law to shut down the start-up’s activities.
Justice Scalia’s dissent emphasized that the subscriber selects the shows watched instead of Aereo. He concluded that the specific situation before the Court did not fit within the Copyright Act and Congress should provide any necessary fix. Unfortunately for Aereo, Inc., the 6-3 decision announced by the Supreme Court likely means the hole in the Copyright Act which it chose to exploit is closed and the company will likely find it a challenge to remain in business.
By William Costolo