SCOTUS takes another crack at copyright law in the digital age

The U.S. Supreme Court is no stranger to cases that pit copyright norms against the progress of technology. The problem is that, in doing so, they’ve created more complex law than is prudent. Each time the Court gets involved in high-stakes copyright litigation only further shows the inadequacy of current copyright law to deal with technology and all the questions technological advances raise. The longer we go without revision to the Copyright Act the more consequential the Court’s decisions will become.

The last major overhaul of federal copyright law came with the Copyright Act of 1976. Before that, the governing law was the Copyright Act of 1909. In the nearly seven-decade span before Congress got around to updating the laws, several technological advances had been made. The widespread accessibility of radio, sound recordings, motions pictures, and the invention of television were all advancements that Congress could not fathom in 1909. One purpose of the 1976 Act was to address concerns raised by these new forms of technology, and to craft a law the allowed for new, as yet unknown, technologies of the future. Yet, almost immediately, new technology pushed the bounds of the 1976 Act.

In 1984, for example, the Supreme Court was called on to determine whether video recording technology, now so prevalent with half the homes in America using DVRs, violated the new copyright law. In response to the challenge to the new law, the Court created a new concept in copyright called “time-shifting.” When a television program originally aired on a Monday evening at 7pm, video recording technology allowed the user to reproduce that original broadcast to watch at a later time. While the 1976 Act prohibits unauthorized reproductions, the Court decided that time-shifting fits into a category of exceptions known as fair use (itself a very complex topic that cannot be adequately addressed here – maybe in a future post). Thus, out of nothing, the Court created a new way to use a copyrighted work that did not violate the ban on unauthorized reproductions. This case, Sony Corp. ofAmerica v. Universal City Studios, demonstrates how the Supreme Court and other lower federal courts currently deal with questions arising from the conflict between new technologies and old copyright conventions. Rather than treat the 1976 Act, including its subsequent amendments and clarifications, as imposing black and white regulations on the use of copyrighted works, the courts fashion grey areas that bog copyright law down with endless nuances.

The problem persists. The Supreme Court heard oral arguments today in a new case, American Broadcasting Companies, Inc. v. Aereo, Inc., which will yet again test the bounds of current U.S. copyright law as applied to the ever-changing technological landscape. ABC and other networks are suing Aereo, Inc. over their business model that provides access to broadcast television to Aereo customers via the Internet.

Remember the bunny ears atop your T.V.? Or maybe the antenna on the roof of your house? Not many years ago, these were replaced with HD receivers. So long as you had a television and one of these receivers you could access broadcast television free of charge. Fast forward to today when fewer and fewer homes have these types of receivers. Consumers today are more likely to spend an average of $100 a month for cable or simply wait for their favorite shows to come up on Netflix or Hulu. Here is where Aereo comes in to the picture. With more and more people scrapping cable, satellite dishes, and antennae for internet-based viewing platforms, Aereo developed a service where customers could access broadcast programming online.

Instead of each home having its own HD receiver, Aereo uses thousands of tiny antennas housed at their facilities. These antennas pick up broadcast signals sent out over the public airwaves then store these broadcasts on the cloud. Subscribers to Aereo services can then access these broadcasts through internet-enabled devices. The technology essentially works the same way a receiver and DVR do – the broadcasts is accessed and recorded for later viewing. The user, not Aereo, controls what programs are accessed and stored.

Aereo, however, pays no subscription or royalty fees to the broadcasters. Aereo contends that they are simply an antenna rental service – that their service is no different than viewers using their own antennas to access the broadcast. Cable and satellite providers pay the broadcasters billions of dollars in fees every year. The broadcasters argue that Aereo is no different than these other types of services. Rather than a thousand individual, private antennas stored outside the consumer’s home, the antennas instead work as one collective unit broadcasting to the public at large. Copyright law makes a distinction between public and private uses of broadcast television. Public broadcasts are prohibited where private broadcasts are not – hence, the broadcasters argue, the reason why cable companies pay to broadcast network television where an individual with a television and receiver does not.

The questions presented to the Court hinge on this public/private distinction. And while, from a consumer’s perspective there is little difference between watching Fox or ABC or CBS online versus over-the-air, the technology involved is something unseen before by the legal system. Even the best foresight from 1976 could not adequately equip the law with what is necessary to deal with today’s copyright issues.

While this is a fairly simplified account of the case (you can get more details here), these aspects of the case highlight the tension between established custom in the industry on the one hand and progress and the changing needs of consumers on the other. The decision of the Supreme Court, not likely to come until summer, will undoubtedly feature the Court wading into the murky grey areas of the law, yet again manufacturing some new concept not found in the Copyright Act. The decision is almost guaranteed to create more questions than it answers, entangling copyright law in an ever-greater web of complexity. Isn’t it time for Congress to take another crack at updating the laws?