Clinic Students File Amicus Brief on Behalf of Leading Consumer Groups in Supreme Court Aereo Case

On Wednesday, April 2, 2014, students at the Glushko-Samuelson Intellectual Property Law Clinic of the Washington College of Law filed an amicus brief (read it here (PDF)) in the pending Supreme Court case American Broadcasting Companies, Inc. v. Aereo, Inc., involving Aereo’s cloud antenna and DVR service. The students’ brief argues that Aereo promotes consumer sovereignty by providing an on option for flexible use of broadcast television, and that the public interest in protecting consumer choice in information is rooted in the United States Copyright regime.

Student attorneys Natasha Dhillon, Justin Hemmings, Maggie Scales, and Will Stanley prepared the brief on behalf of the Consumer Federation of America (CFA) and Consumers Union (CU), two leading non-profit organizations that support consumers’ interests through advocacy, research, and education. The CFA is currently the largest consumer advocacy organization in the U.S., with nearly 300 non-profit member organizations and 50 million consumer members. It is the leading analyst of, and advocate for, digital disintermediation – a powerful process that leverages digital technologies to reduce costs for both producers and consumers. The CU is the policy and advocacy division of Consumer Reports, and it has more than one million online activists working to protect consumers. Both organizations have the shared mission of protecting consumers’ interests by advocating for the protection of consumer choice-enabling characteristics of copyright law. In this case, these organizations sought to protect the consumer interest in recognition of the legitimacy of consumer choice-enabling technologies, and encouraging the pro-consumer effects that these technologies have on the dysfunctional market for television information and entertainment.

The case, which will be argued on April 22, 2014, centers on the question of whether Aereo engages in public performances as defined in sections 101 and 106 of the Copyright Act. Aereo’s technology works by giving consumers the ability to rent and remotely control and access an over-the-air (OTA) TV Antenna. Each user gets their own individual antenna, storage space for recording shows, and DVR capability to record any shows broadcast in their local market and then watch those recordings at any time from any networked device located in that market.

Two weeks before Aereo’s launch in New York City, a number of broadcasting companies, including ABC, CBS, NBC, and Fox, filed suit seeking an injunction against Aereo and alleging that Aereo’s streams constituted unlicensed public performances and were therefore infringing on the broadcasters’ copyrights. A federal judge denied the injunction, citing Cartoon Network, LLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (Cablevision),which established the legality of cloud-based streaming and DVR services. The broadcasters appealed to the U.S. Court of Appeals for the Second Circuit, which upheld the lower court’s ruling, holding that Aereo’s video streams were not “public performances,” and were therefore non-infringing. The Second Circuit also affirmed the denial of the preliminary injunction against Aereo. In October, 2013, the Broadcasters filed a petition for certiorari in the United States Supreme Court, and on January 10, 2014, the Court agreed to hear the case. Meanwhile, a lawsuit against Aereo in the District of Massachusetts resulted in denial of a preliminary injunction, while a lawsuit in the District Court of Utah granted a preliminary injunction against Aereo throughout the 10th Circuit. Both lawsuits have been stayed pending a decision by the Supreme Court.

Aereo maintains that it does not publicly perform copyrighted works because (1) the transmissions from Aereo’s equipment are protected private performances, and (2) Aereo’s users transmit a new performance from a recording of the broadcast, not the same performance embodied in the broadcast. Aereo believes that the users, rather than Aereo, “perform” by using the equipment. Finally, Aereo believes considerations of copyright policy strongly support the decision below in the Second Circuit in WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013).

CFA and CU believe that the public policy of the United States copyright regime strongly favors consumer sovereignty and consumer choice, which Aereo provides. As a cloud-computing tool that allows consumers to access and record free OTA television broadcasts and enables time- and place-shifting of broadcast programming, Aereo provides greater consumer choice in where and how to watch free OTA broadcast programs. Leveraging cloud-computing’s beneficial economies of scale, Aereo provides the flexibility of time- and place-shifting more affordably, charging around $8 per month for its service. Without Aereo and similar technologies, content providers will continue to restrict consumer choice and control of locally available arrays of free OTA broadcasts.

Additionally, this decision has broader implications on the legality of cloud computing technology in general, as a decision in favor of the broadcasters would threaten the viability of many tools that allow for convenient storage of and access to personal information (e.g., DropBox). This amicus brief argues that copyright law, from its origins to its modern applications, protects consumer choices in how and where to make use of lawfully acquired content, citing cases such as Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), Feist Publications v. Rural Telephone Service, Co., 499 U.S. 340 (1991), Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351 (2013), and citing the articulation of the public-private distinction codified in the 1976 Copyright Act. Affirming the Second Circuit’s ruling would reinforce the important protections that copyright law provides to consumer sovereignty, preserve technology that enables flexible use of free OTA broadcast television, and protect the important role that cloud computing technologies have assumed in American life.

In the course of preparing this brief, the students gained a better understanding of the intersection of copyright law, modern technological innovations, and consumer advocacy. With the help of professors Peter Jaszi, Victoria Phillips, and Brandon Butler, the students believe the amicus brief submitted on behalf of the CFA and CU will inform the Court regarding the broad implications of the outcome of the case.

About Brandon Butler

Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Clinic.
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