Welcome to Thunderdome

Aereo subscribers pay up to $12 a month for service that allows them to watch and record local broadcast TV stations on laptops and mobile devices. Aereo gets around having to pay local stations by renting subscribers a tiny individual antenna which receives local signals. Consumers can record and watch shows via a cloud-based video recorder service.

“The broadcasters are asking the Court to deny consumers the ability to use the cloud to access a more modern-day television antenna and DVR,” said Aereo CEO Chet Kanojia in a statement. “They are asking the Court to confine consumers to outdated equipment and limit their access to lawful technology in order to protect a legacy business model, the success of which is built on eliminating consumer choice and competition in the marketplace.”

The opinion in American Broadcasting Companies Inc. v. Aereo was written by Justice Stephen Breyer. He was joined by Chief Justice John Roberts, Justice Anthony Kennedy and the three liberal justices. Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented.

Internet-service providers are a prime example. When one user sends data to another, the provider’s equipment facilitates the transfer automatically. Does that mean that the provider is directly liable when the transmission happens to result in the “reproduc[tion],” §106(1), of a copyrighted work? It does not. The provider’s system is “totally indifferent to the material’s content,” whereas courts require “some aspect of volition” directed at the copyrighted material before direct liability may be imposed.