Today, the U.S. Supreme Court agreed to hear litigation between broadcasters and Aereo, a streaming service that retransmits broadcast programming without consent or payment.  Broadcasters argue that Aereo infringes their exclusive right to publicly perform copyrighted works.  Aereo contends that its system uses one antenna per subscriber to provide each user a separate copy of the programs streamed and thus it is not “publicly” performing the works.  The Court will likely issue a decision by the end of June.

The case has wide-reaching implications for the media industry.  Broadcasters argue that Aereo is a parasitic service that jeopardizes ad revenue and retransmission consent fees.  Network heads have warned that a decision in favor of Aereo may necessitate a migration of free, over-the-air television to pay services.  In contrast, Aereo argues that it merely is providing consumers with a convenient means to do what they can do for themselves and contends that its opponents are seeking to stifle innovation.

The Supreme Court granted certiorari in broadcasters’ appeal from the Second Circuit, where a divided panel affirmed a district court decision denying a preliminary injunction against Aereo. The two-judge majority relied significantly on the Second Circuit’s earlier decision affirming the legality of Cablevision’s remote digital video recorder (RS-DVR) service.  In Cablevision, the Second Circuit held that the transmission of copyrighted television programming via RS-DVR did not qualify as an infringing “public” performance because each viewer received a separate, private transmission from an individual recording.  Judge Denny Chin dissented in Aereo, calling the streaming service “a sham” and “a Rube Goldberg-like contrivance, overengineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.”

Battles over Aereo and similar service FilmOn X have divided lower federal courts across the country, and the Supreme Court likely considered the foreseeability of a circuit split in its decision to take the case.  In an unusual move for a victorious party in the court below, Aereo urged the Supreme Court to take the case in order to bring resolution to the widespread litigation regarding its service.   Federal district courts in California and the District of Columbia have granted preliminary injunctions against FilmOn X, while another district court in Massachusetts denied a preliminary injunction against Aereo.  All three cases are on appeal.  Two other cases have been pending in Utah and Illinois, concerning Aereo and FilmOn X respectively, with no initial decision yet.

The Supreme Court took the case without comment.  Justice Alito did not participate in the decision to hear the case.