A Supremely broken Aereo

[Commentary] Even though it reaches the correct outcome, the Supreme Court’s Aereo opinion is staggeringly, and confusingly, bad. The court’s “looks like cable” analysis fails to address the difficult questions about the meaning of the Copyright Act; rather, it has added to existing confusion.

The most perplexing and problematic aspect of the Supreme Court’s opinion is that it never uses the term “primary transmission.” A primary transmission is a signal broadcast to the public that is later retransmitted by another service (a secondary transmission). Section 111(f) of the Copyright Act defines this term, and notes expressly that any streams broadcast by a broadcast television station are primary transmissions. The Act then defines “secondary transmission” as the “further transmitting of a primary transmission simultaneously with the primary transmission.”

This is precisely what Aereo was doing: it made a secondary transmission of a primary transmission. The implication -- supported by one of the most basic principles of statutory construction -- is that any secondary transmission is in fact a copyright violation unless it falls into one of the listed exceptions. In their briefs, the parties argue, obliquely, over whether Aereo is making a secondary transmission.

Regardless of their purpose, the parties’ briefs would have made the Justices sufficiently aware of Section 111’s framework to find answers to their questions there.

[Hurwitz is an assistant professor at the University of Nebraska College of Law]