Aereo Inc., a company that provides access to live television broadcasts for display on computers and mobile devices, is facing two copyright infringement lawsuits in the US District Court for the Southern District of New York. In March 2012, a number of networks including Fox Television Stations, Inc., Univision Television Group and American Broadcasting Companies Inc., sued Aereo for copyright infringement and unfair competition. In response, Aereo counterclaimed, asking the court to declare that its services are legally analogous to using an antenna with a television, and therefore noninfringing. The court recently dismissed the networks’ unfair competition claim as being precluded by the established protections of the Copyright Act.

For a monthly fee, Aereo, which is only available in New York, provides subscribers access to broadcast television for their computers and mobile devices. Aereo uses a small antenna that captures live television signals and allows users to create a copy of the content on a digital video recorder for playback on various devices. Aereo argues that its services are covered by established copyright precedents and are protected by the Radio Act. Referring to Sony Corp. of America v. Universal City Studios Inc., 464 US 417 (1984), Aereo asserts that the use of a digital video recorder to store programming for later viewing falls within the time shifting exception of Sony, and therefore does not infringe. As further support, Aereo relies on Cartoon Network LP v. CSC Holdings Inc., 536 F.3d 232 (2d Cir. 2008), which held that use of a remote DVR to record content did not rise to copyright infringement.

The networks, on the other hand, argue that Aereo is retransmitting content in the same manner as satellite providers, but is doing so “absent a statutory or negotiated license to retransmit copyrighted programming to its customers, or an applicable statutory limitation.” Accordingly, the retransmission of their copyrighted content constitutes a violation of the public performance right under the Copyright Act. They further assert that although Cartoon Network allowed for DVR recordings, the defendant in that case had licensed the right to rebroadcast content, whereas here, Aereo is operating without a license. The networks believe that Aereo’s services will harm their agreements with affiliates and online services like iTunes and Hulu, and could have an effect on advertising revenue since the networks will not be able to determine Aereo’s viewership and the popularity of content.

With the pace of new developments in technology and the growing likelihood of Internet-based television, the outcome of this case could have a significant effect on television networks and the television industry as a whole. The ability to easily rebroadcast content creates significant copyright infringement concerns for networks. Moreover, as new methods of recording and broadcasting content develop, networks must anticipate potential copyright issues to avoid losses in revenue.

Arent Fox is monitoring this case. For more information on this case or any other cases involving copyright infringement, please contact Anthony V. Lupo, Sarah Bruno, or Luna M. Samman.