Aereo and Copyright’s Private-Public Performance Line

The Copyright Act of 1976 provides to copyright owners the exclusive right to perform their copyrighted works publicly, but not the exclusive right to perform their works privately. As a result, to determine whether any given performance infringes a copyright owner’s exclusive rights, we must draw a line between public and private performances. The current line between public and private performances is more a historical accident, coupled with historical path dependence, than a rational attempt to advance copyright’s purposes.

On January 10, 2014, the Supreme Court granted certiorari in American Broadcasting Cos. v. Aereo, Inc. By doing so, the Court has seized an opportunity to bring some rationality to copyright’s line between public and private performances. In this pending case, the respondent, Aereo, uses thousands of tiny antennae to capture television broadcast signals, which then transmit the signals to its subscribers over the Internet. The question presented is whether Aereo “publicly performs” the copyrighted works carried in the television broadcast signals that are captured and retransmitted.

The following explores the historical background and the Second Circuit’s analysis of the Aereo case, then develops the argument for distinguishing public and private performances by focusing on whether the intermediary at issue is likely to have market power.

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