Focus Areas:    Broadband | Copyright | FCC | Intellectual Property

Amicus brief of ICLE & CEI, ABC, Inc., et al. v. Aereo, Inc., SCOTUS

Brief of International Center for Law & Economics & Competitive Enterprise Institute as Amici Curiae Supporting Petitioners,, Am. Broad. Companies, Inc. v. Aereo, Inc., 134 S. Ct. 2498 (2014) (No. 13-461).

Summary

“Respondent (“Aereo”) deploys a system of tiny antennas and large computer servers to capture, transcode, and retransmit live television broadcasts online without authorization or, indeed, any contractual relationship with copyright holders at all. The inelegant complexity of its retransmission system is entirely a function of Aereo’s efforts to evade copyright law; it makes no sense from a technological standpoint. Despite its efforts to engineer its way around the Copyright Act, Aereo cannot escape copyright liability. By providing unlicensed television broadcasts to its subscribers—a subset of the public—Aereo plainly violates the exclusive public performance rights held by copyright holders in its unauthorized transmissions.

Although Aereo’s technological machinations are cleverly designed to create sufficient ambiguity as to their legality, Aereo’s business model is clear: to offer the public the same online access to broadcast television programming that is readily available elsewhere, but without incurring the cost of compensating copyright holders of that programming. In so doing, Aereo effects a simple— and illegitimate—wealth transfer from copyright holders to itself, without creating any appreciable countervailing consumer benefits. In so doing, it undermines the ability of copyright holders to enter into voluntary transactions to license their content and thus subverts the constitutionally and congressionally protected right of creators and their licensees to market their creative works…”

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