Aere-no! The broadcasters win. The new “commercial objective” standard of copyright analysis.

Following the live blog, the bullet points were posted as the decision was being handed down, and upon a quick reading of the case shortly thereafter.

  • The transmission from Aereo to its customer is an infringing public performance.
  • Crazy copyright lineup: Breyer writes for the majority, with Scalia, Thomas and Alito dissenting.Aereo basically set up a cable company, in spite of the “behind-the-scenes technological differences”
  •  The Supreme Court sides with the Ninth Circuit on a copyright case — fancy that!

  • Excerpt: “Considered alone, the language of the Act does not clearly indicate when an entity ‘perform[s]’ (or ‘transmit[s]’) and when it merely supplies equipment that allows others to do so. But when read in light of its purpose, the Act is unmistakable: An entity that engages in activities like Aereo’s performs.”
  • This is Scalia’s bread and butter – using historical context to shed light on an ambiguous statute. But Breyer stole his thunder!
  • It seems like Breyer saw this as the most expedient way to preserve the cloud while shooting down Aereo. Because the decision is based on a part of the legislation aimed specifically at cable companies, you can shut down Aereo by calling them a cable company. The cloud lives.
  • Breyer rhetorically asks “why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. They do not render Aereo’s commercial objective any different from that of cable companies.” So is this some kind of new standard for copyright analysis? Not “what you did,” which we expect in a strict liability tort like copyright law. But “what you were thinking about when you did it.”
  • Breyer’s easy-breezy analysis reads like a Scalia opinion, full of rhetorical questions, logical leaps, and an odd distribution of the burden of proof. The broadcasters should have to show why there is infringement, but Breyer’s analysis primarily burdens Aereo to show why there isn’t.
  • Justice Breyer presumes the volition of Aereo in sending the shows, without discussing the possibility that the transmissions of Aereo are the user transmitting the show to herself.
  • Scalia’s dissent based on volitional conduct is absolutely right. Aereo is not making the transmission, the customer is. “Unlike video-on-demand services, Aereo does not provide a prearranged assortment of movies and television shows. Rather, it assigns each subscriber an antenna that—like a library card—can be used to obtain whatever broadcasts are freely available.”
  • Strange positions: Justice Breyer writes an anti-tech opinion, Justice Scalia’s dissent cries “stare decisis”! What is the bench coming to!?!

There is good and bad in this decision. Breyer shoots down a technology by using broad, intent-based analysis rather than a close technological reading as we have generally seen in copyright tech cases. But on the other hand, Breyer specifically limits the decision to the facts of Aereo, and specifically endorses cloud storage as it is currently understood. Explicitly limiting decisions to the facts presented will not prevent content owners from using Aereo as ammunition against technologies that would seek to improve customer access to creative works. Also, if I hated cloud storage, Aereo would be the first case I cited, and I would parrot Justice Scalia’s logic in applying the majority opinion. Overall, the decision seems something of a mess. I’m sure the broadcasters are happy about it, and the price of purchasing Aereo just went way down. But its unclear reasoning and limited holdings will likely keep the real questions of copyright law largely in the hands of the district and appellate courts, as proposed by Professor Hansen.

On Facebook, Michele Williams asked me “Is this good or bad….

As you can imagine, Michele Williams, it remains to be seen whether it is good or bad. It’s certainly bad for Aereo. I think it is a bad application of the facts to the law at hand. Scalia got it right in the dissent: the Aereo service lets customers “rent” the Aereo server space and send things to themselves. But the majority sees it differently, and thinks Aereo is sending TV to all of its customers. Think about this view of Gmail or DropBox: you’re not sending things to yourself or others, the service provider is sending them. Under Aereo, they are responsible for the effect copyright law has on their sending of these materials. The decision may not be followed in that manner, but it certainly will be strong support for IP owners who want a piece of the action from digital distribution services as they emerge.

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