Print Friendly, PDF & Email

U.S. Surpreme Court has just made an important decision that could have implications beyond U.S. borders.

What was at stake issue were the activities of the company Aereo that transmitted programs U.S. television via a new technology.

A little text to help you to better understand the situation.


The Aereo customers could watch and record programs of U.S. networks (CBS, NBC, ABC via Disney or News Corp.) by subscribing to Aereo services without having to pay a cable subscription (see for a complete explanation of the Aereo technology the ruling of the US Supreme Court and the article by Rebecca Giblin and Jane Ginsburg).

By subscribing to Aereo services, a customer is granted the ability to use two of the thousands of small antennas Aereo owned and stored in huge warehouses. When the client wanted to watch a specific program, one of the two antennas allocated to the customer picks up the signal and transmits the program carried by the signal to the servers of Aereo.

The servers sent the choosen program in the cloud. Only then, and with a few seconds gap between the direct transmission, the customer could watch on his device (smartphone, tablet) the desired program. The other small antenna allows customers to simultaneously record another program to watch it later (note that the recording function was not analyzed by the Supreme Court).

Particularities of the Aereo system: no antenna is used simultaneously by two customers at the same time – the signal captured by the antenna is stored in a dedicated space to the client in the servers of Aereo and in the cloud, a recorded program is never shared with another client

Aerea subscription was very low : about ten dollars a month. Much lower than the hundred dollars to be paid by Americans to have access to all cable channels. However, only the areas of Dallas, Austin, Houston, San Antonio, Miami, Atlanta, Cincinnati, Baltimore, New York, Detroit and Boston were covered.

Ah yes, Aereo paid no right to broadcasted television channels.


A priori, the law does not prohibit this practice when the antenna is individual.

While a New York court ruled in favour of Aereo 2012, the activities of Aereo were dimissed by the U.S. Supreme Court. Indeed, the latter, considering the fact that Aereo in reality did a real public performance, public performances executed without the permission from the concerned copyright holders. The Supreme Court so ruled with an overwhelming majority (6 votes against 3) that Aereo infringed Copyright Law.

Aereo claimed that if infringement there was, it was committed by the users of its services. Aereo only provides a technology that allows its users to watch content legally accessible by other means. Aereo considered that he only allowed its subscribers to achieve their personal copy, copy perfectly legal.

None of his arguments convinced the Supreme Court.

Indeed, whatever the technology developed by Aereo (which one may ask if everything was not done by Aereo to try to place him outside of the scope of exclusive rights of copyright owners: the thousounds of antennas instead of one much larger, etc..), the final result is the same as the provision of a cable transmission.

“To the extent there are differences, these differences do not affect the nature of the service provided by Aereo. We conclude that these differences are not sufficient to place the activities Aereo outside of the Copyright Act. “.

Aereo therefore will be forced to negotiate with copyright holders to continue its activities. Have negotiations already begun? Maybe is why Aereo has already announced that it was suspending its services, a time needed for reflection.


This decision recalls the 2008 French ruling in the Wizzgo case (wherein Wizzgo said that he only used the personal right to private copying) and the litigation currently pending between Bhaalu (Right Brain) and the Flemish broadcasters. It makes us also think to the ruling of the Court of Justice of the European Union of March, 7th 2013 (the TVCatchup judgement) and the 2008 Appeal of the Second Circuit in the CableVision case.

The Second Circuit decided that: “Cablevision’s Remote Storage-Digital Video Recorder (“RS-DVR”) does not infringe copyright owners’ public performance rights because the only person who can play back a recording is the person who have made it.“.

In the CableVision case, the recording of the programs in the cloud by CableVision only concerned TV programs for which the subscribers of CableVision had already a subscription via their subscription to their usual cable distributor.

The Supreme Court emphasized here that its decision was limited to television. She did not analyze the different cloud services currently available to Internet users. It will be the case when and when a file will be bring before her and will concern this technology.


Pictures: Antenna icon made ​​by Freepik from – Data Center designed by Michael Thompson from the Noun Project – Cloud icon made ​​by SimpleIcon from – Arrow designed by Arthur Shlain from the Noun Project Creative Commons – Attribution (CC BY 3.0)