KWIKH partner Jonathan Steinsapir was quoted by Law360 in reaction to the major ruling by the U.S. Supreme Court in the widely followed American Broadcasting Companies Inc. v. Aereo.
The essence of the decision was that in spite of Aereo’s claim that it was transmitting “private” performances (which are not protected by copyright law, as opposed to “public” performances, which are) because each of its subscribers had a personal antenna and the streamed data was delayed by several seconds, the Court held that the company was violating copyright law simply because it was retransmitting over-the-air programming without authorization.
The Court seemed to be saying, “Yes, you have skillfully constructed your business model to take advantage of several loopholes in the law, but the fact remains that you are selling copyrighted material without compensating the copyright holders.”
“The Aereo case, in my opinion, returns copyright law to the status quo prior to the
Second Circuit’s creative interpretation of the Copyright Act in the Cablevision case —
a case which got the right result for all the wrong reasons. The Supreme Court went
out of its way to limit the decision to the precise technology at issue. Although the
decision calls the reasoning of some cases into question — e.g., the Cablevision case
and the still pending DISH Hopper case’s interpretation of a ‘performance’ — I believe
that the results in those cases won’t change, for better or worse.”