In American Broadcasting Companies v. Aereo, Inc., the Supreme Court took up the question whether Aereo engaged in the “public performance” of television programming. The service captured over-the-air programming on individual antennas, recorded that programming, and made it available to users. The lower courts held that Aereo had not engaged in “public” performances on the ground that it was in effect operating a “remote antenna” service on behalf of individual users. The television industry, with broad support from the music industry argued that Aereo’s tortured service was designed to exploit a non-existent loophole in the Copyright Act, and that Aereo should be seen for what it is: a company engaged in the public dissemination of copyrighted programming.
SoundExchange followed the case closely, and joined several music industry amicus briefs in support of the plaintiffs. (You can read our briefs here.) The scope of the public performance right is a critical issue for all creators, including the music industry, and Aereo’s early victories had the risk of setting an alarming precedent. Fortunately, the Supreme Court ruled against Aereo, and held that it did engage in the public performance of television programming – notwithstanding the tortured technical structure of the platform, Aereo’s basic business involved recording broadcast programming and making it available to its subscribers.
The Supreme Court’s ruling (found here) is both consistent with the law, and reflects the Copyright Act’s adaptable approach to the scope of what constitutes a public performance.
Importantly, the Supreme Court’s decision now makes it more clear than ever that the existing gaps in the scope of the performance right under US law should be closed. Specifically, the National Association of Broadcasters, which represents television stations, and who we supported in the Aereo decision, should now encourage its radio station members to also recognize the value of the content that they distribute. They should agree to eliminate the unfair exemption that allows radio broadcasters to play music – and make money off of it – without paying performers a dime. Learn more about the radio exemption from performance royalties here.