Aereo system was like Sony VCR 792x350
Michael Kelleher

Michael Kelleher

Supreme Court Creates Copyright Uncertainty in Aereo Decision

In the 6-3 ABC v. Aereo decision, the Supreme Court made a mess of copyright law and sowed uncertainty for technology companies by trying to plug a loophole. As Justice Scalia put it in his dissent, the Court put in place "an improvised standard (‘looks-like-cable-TV’) that will sow confusion for years to come." This post presents an annotated e-brief style version of the opinion with my notes.
Aereo hearing graphic - why is Aereo like home equipment
A graphic created by Cogent Legal for Aereo’s legal team.

In today’s 6-3 ABC v. Aereo decision, the Supreme Court made a mess of copyright law and sowed uncertainty for technology companies by trying to plug a loophole. As Justice Scalia put it in his dissent, the Court put in place “an improvised standard (‘looks-like-cable-TV’) that will sow confusion for years to come.”

The majority opinion invites years of litigation to clarify how far this supposedly limited decision extends. In reaching out to impose liability on Aereo, the majority goes beyond the statutory language and supposedly applies congressional intent. To do so, the majority ignores technology differences between cable systems and Aereo, stating these differences do not matter. However, such technology differences do matter to companies that are trying to create new technologies and to predict how copyright law will apply.

Full disclosure: I’m not a neutral bystander here. As a litigator, I fought in copyright vs. technology battles myself. As the general counsel of a technology startup, I tried to predict how copyright law would be applied to new technologies. Most recently, at Cogent Legal, we helped Aereo’s legal team in opposing a preliminary injunction (see this post for more about that).

In this post, I’ve annotated the Aereo opinion with my notes in a table of contents form. (I’ve put in bold/large heading some of the more significant or interesting sections of the opinion.) Click on the links below to go to the associated section of the opinion. I created the annotated PDF using some of the tools that we use at Cogent Legal to make e-briefs. I hope you find the annotated opinion useful. If you want to read more about e-briefs, check out previous e-brief posts on our blog at this link. Please email me if we might help you with e-briefs for your case.

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