In an eagerly awaited decision, the Supreme Court today held that Aereo's system for delivering broadcast television over the internet is an unauthorized public performance and infringes the copyrights of the television networks and others under Section 106(4) of the Copyright Act. American Broadcasting System, Inc. v. Aereo, Inc., No. 13-461 (June 25, 2014), http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf.
Justice Scalia's dissent, joined by Justices Alito and Thomas, contends that home users, not Aereo, were the volitional actors in connection with the television transmissions over the internet, and that Aereo thus could not be a direct infringer. The dissent invoked the Second Circuit's decision in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F. 3d 121, 130 (CA2 2008) on this point, stating that "the question is who does the performing." Aereo, dissent 2. The Supreme Court's majority decision rejects the dissent's analysis on this point, but without referring to the Second Circuit's decision in Cartoon Network.
The Court's decision will undoubtedly have a significant ripple effect on pending and future copyright cases.