The Supreme Court granted a petition for certiorari and reversed. Writing for a 6-3
majority, Justice Breyer noted that the case required the Court to answer two questions – whether
Aereo “performs” the petitioners’ works at all, and if so, whether it does so “publicly.”^452
Turning to the first question, the Court first reviewed the history that led Congress to
amend the copyright statute to bring the activities of community antenna television (CATV)
systems (precursors of cable systems) within the scope of the copyright holder’s public
performance right. The Court had held in its 1968 decision in Fortnightly that a service provider
did not “perform” copyrighted works by placing antennas on hills above cities and using coaxial
cables to carry the signals to the home television sets of subscribers because, unlike broadcasters,
the service provider did not select the programs to be viewed, but rather simply delivered the
programs received to additional viewers.^453 And it had extended the logic of Fortnightly in its
1974 decision in Teleprompter to conclude that a CATV provider that carried broadcast
television programming into subscribers’ homes from hundreds of miles away was still acting
more like a viewer than a broadcaster and therefore did not “perform.” The choice of which
broadcast stations to retransmit by the CATV provider was not sufficient to make the provider a
broadcaster.^454
In response to these two decisions, Congress amended the copyright statute in 1976 in
large part to reject the Court’s holdings in Fortnightly and Teleprompter. The amendments
clarified that to “perform” an audiovisual work means to show its images in any sequence or to
make the sounds accompanying it audible, and under this definition, the Court noted, both the
broadcaster and the viewer of a television program “perform,” because they both show the
program’s images and make audible the program’s sounds. Congress also added the transmit
clause to broaden the definition of public performances to include transmissions of a
performance to the public. Accordingly, the transmit clause made clear that an entity that acts
like a CATV system itself performs, even if when doing so it simply enhances viewers’ ability to
receive broadcast television signals.^455
The Court found this history to make it clear that Aereo was not simply an equipment
provider. Rather, because Aereo’s activities were substantially similar to those of the CATV
companies that Congress amended the copyright statute to reach, Aereo, and not just its
subscribers, “performed” the works transmitted through its system. The Court recognized that a
particular difference between Aereo’s system and the CATV systems at issue in Fortnightly and
Teleprompter was that the latter systems sent continuous programming to each subscriber’s
television set. In contrast, Aereo’s system remained inert until a subscriber indicated a desire to
watch a program, and only at that moment, in automatic response to the subscriber’s request, did
Aereo’s system active an antenna and begin to transmit the requested program. However, the
Court nevertheless concluded that, given Aereo’s “overwhelming likeness” to the cable
(^452) American Broadcasting Co. v. Aereo, Inc., 134 S. Ct. 2498, 2504 (2014).
(^453) Id. at 2504-05 (citing Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 498-400 (1968)).
(^454) Aereo, 134 S. Ct. at 2505 (citing Teleprompter Corp. v. Columbia Broadcasting Sys., 415 U.S. 394, 408- 10
(1974)).
(^455) Aereo, 134 S. Ct. at 2505-06.