aereo

Audio Casebook: ABC v. Aereo (S.Ct. 2014) (broadcast television DVR)

Listen to the Audio Casebook: ABC v. Aereo (S.Ct. 2014) (broadcast television DVR)

 

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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!

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Prediction on ABC v. Aereo

I figured I’d port over this conversation I had on Facebook with my friend Bradley offering half of a prediction on ABC v. Aereo:
Bradley Glenn
so Britton, in your opinion the broadcasters will win?

Britton Payne
I think Aereo is right on the law, but most people seem to think it will be a very limited ruling that smacks down Aereo while allowing cloud computing and storage to persist without upsetting copyright law. The three issues most likely to decide the case are 1. does the distribution from Aereo to its customer violate the “transmit clause,” 2. is Aereo or the customer the volitional actor, or 3. some public policy thing predicated on the deal broadcast networks have with the government to use the public airwaves. We’ll know soon enough!

No Aereo decision yet…

We are waiting on the ABC v. Aereo (remote DVR service for broadcast television) decision from the Supreme Court. Decisions are generally issued at 10am on Mondays and Thursdays in May and June. The opinions trickle out at a pace of about 3-6 opinions per day, for a total of approximately 70 this term. You can find out more details and follow along at the fantastic SCOTUSblog.com live coverage of new decisions announced from the bench. Because Aereo was argued so late in the term (April 22) and involves a fairly complicated technical issue that the justices will want to handle thoughtfully, SCOTUSblog’s Amy Howe predicts that the decision will come towards the end of the term. The Supreme Court has three remaining days scheduled to issue opinions: Thursday June 19, Monday June 23, and Monday June 30. I wouldn’t be surprised if it Aereo was issued on the last day of the term, but I’ll be watching the live feed on each of those days.

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June 23, 2014 update: Still no decision on ABC v. Aereo from the Supreme Court. The Court will be announcing decisions on Wednesday, June 25 and Thursday June 26, and possibly on the final day of the term, Monday June 30. Amy Howe from SCOTUSblog still predicts that ABC v. Aereo will be announced on the last day due to the complexity of the technology at issue, whichever day that happens to be.

The Breyer-Ginsburg Copyright Schism

Copyright decisions issued by the Supreme Court over the last two decades have followed a trend: Justice Ginsburg tends to write in favor of the authors and intellectual property owners, and Justice Breyer tends to write in favor of the intellectual property repurposes and distributors. What does this mean for the impending ABC v Aereo decision about the redistribution of broadcast television programs?