Fordham 2014: Aereo

Moderated by David Carson (IFPI), the final copyright session of the 22nd Fordham IP Conference was devoted to the forthcoming decision of the US Supreme Court in ABC v Aereo [an entire session on this? Of course, because - compared to the EU - Americans are rarely blessed with copyright rulings from their highest judicature].

What is this case about? In a nutshell and as neatly summarised by the US Supreme Court Blog, it concerns whether a company “publicly performs” a copyright-protected television program when it retransmits a broadcast of that program to thousands of paid subscribers over the internet.

The first speaker was Jacqueline C. Charlesworth (US Copyright Office), who reviewed the parties’ positions in this case, as well as the views of the US government, that - as 1709 Blog will know already - sided against Aereo.

Would even views from non-US-based 
people be beneficial to US matters 
discussions?

Then, Joseph C Gratz (Durie Tangri LLP, San Francisco) highlighted how, since the dawn of television, consumers have had a fundamental right to watch over-the-air broadcast television via an individual antenna, and they have had the right to record copies for their personal use since the Sony decision in 1984. These are rights that should be protected and preserved, and copyright law should not curtail them simply because you don't like Aereo or one is using modern, cloud-based equipment.

After Gratz, it was the turn of Robert K Kry (MoloLamken LLP, Washington DC). He argued that the Aereo case has evoked extreme positions on both sides, and that - instead - there is a strong case for a middle ground, ie that the Second Circuit's transmission-based interpretation in Cablevision was correct but that Aereo should lose even under that standard.

The panelists were Irene Calboli (Marquette University Law School, Milwaukee), Jane C Ginsburg (Columbia Law School, New York), and Terry Hart (Copyright Alliance, Washington DC). The latter highlighted that discussion around this case has mostly focused on potential impact on technology (notably cloud computing) and consumers, but that not much has been said about impact on creators.

We'll see what the US Supreme Court decides in this case. For the time being, I cannot help but notice that this panel was 100% made in the USA. Would have views from people working outside the US been beneficial to a discussion on a US case? Vive la diversité ... or not?