American Broadcasting Cos. v. Aereo — Streaming Over-the-Air TV Is a Public Performance

Background

Aereo was a startup that built warehouses full of tiny, dime-sized antennas — one per subscriber — and used them to capture over-the-air broadcast television signals. Each subscriber’s antenna would tune in a specific channel, and Aereo would stream that live feed to the subscriber’s device over the internet. Aereo’s lawyers argued the system was legally equivalent to a subscriber putting a rooftop antenna on their own home: a purely private reception that triggered no copyright liability.

The major broadcast networks — ABC, NBC, CBS, Fox — sued for copyright infringement, arguing that Aereo’s transmissions amounted to “public performances” of their copyrighted programming. Aereo paid no retransmission fees. The Second Circuit had sided with Aereo, reasoning that because each subscriber got their own dedicated antenna stream, each transmission was private, not public. The broadcasters appealed to the Supreme Court.

The Court’s Holding

Justice Breyer wrote for a 6–3 majority, holding that Aereo performed copyrighted works publicly within the meaning of the Copyright Act. The majority rejected Aereo’s technical architecture as a legal strategy: the fact that Aereo assigned a separate antenna to each subscriber was an engineering choice designed specifically to evade copyright liability, not a genuine distinction that transformed a broadcast retransmission service into private reception.

The Court compared Aereo’s service to cable television, which Congress had brought within the public performance right when it amended the Copyright Act in 1976 precisely because cable systems were capturing and retransmitting broadcast signals without payment. Aereo looked and functioned like a cable system, and the Court interpreted the statute accordingly — reading it to cover services that perform the same economic function regardless of their technical implementation.

Key Takeaways

• Streaming a copyrighted broadcast to paying subscribers constitutes a “public performance” under the Copyright Act, even if each subscriber technically receives a separate transmission.
• Courts will look past clever technical architecture to assess whether a service functions like a cable or broadcast retransmission system subject to copyright.
• Aereo-style technical workarounds — assigning individual antennas, servers, or threads per user — will not save a service that otherwise looks and operates like a pay-TV retransmitter.
• Startups seeking to disrupt established content distribution models need licensing agreements, not architectural ingenuity, to avoid infringement.

Why It Matters

Aereo was a cautionary tale for the technology industry: clever engineering cannot substitute for copyright licensing when a service reproduces and retransmits copyrighted content at commercial scale. The decision reinforced the rights of broadcasters to control (and charge for) retransmission of their signals, preserving the retransmission consent framework that funds local television.

The majority’s functional approach — asking what a service does, not merely how it works technically — has broad implications for cloud computing, DVR services, and any technology that stores or transmits copyrighted material. The dissent argued the majority’s reasoning was dangerously vague and could sweep in lawful services. The tension between Aereo’s majority and dissent continues to influence how courts assess novel distribution technologies.