FOR RELEASE: February 27, 2014

Contact: Richard T. Kaplar
The Media Institute

Arlington, Va., Feb. 27, 2014 – The Media Institute has filed a friend-of-the-court brief with the U.S. Supreme Court in a case that could have disastrous consequences for the U.S. broadcasting industry.  The Institute filed a brief in American Broadcasting Companies, Inc. v. Aereo, Inc., arguing that Aereo’s model for distributing broadcast content to its subscribers violates broadcasters’ rights under copyright law and is merely a blatant attempt to avoid paying licensing fees.

Aereo employs a technological scheme involving thousands of dime-sized antennas to make individual copies of broadcast content, which it then retransmits to its subscribers.  The company claims that since each copy is intended for a single user, the company is not creating a “public performance” of the copyrighted content that would require payment of licensing fees.

“If a picture tells a thousand words, a thousand antennas tell the picture,” the brief states.  “Aereo’s bizarre engineering, employing thousands of antennas to do the work of one, reveals to all what is really going on.”  Aereo’s practices amount to “manipulative technological exploitation,” the brief says.

The Institute’s brief argues that Aereo’s model relies on “technological contrivances that serve no purpose other than to provide a pretext of legal cover, allowing Aereo to traffic in copyrighted content without paying for it.”  Moreover, Aereo’s unlicensed retransmissions pose a massive threat to the settled economic and legal arrangements that undergird the broadcast industry.

The brief explains in detail why the decision of the U.S. Court of Appeals for the Second Circuit upholding Aereo’s practices is wrong and should be rejected by the Supreme Court.  The brief concludes by asking the Court to reverse the judgment of the Second Circuit and to rule in favor of the broadcasters.

The Institute’s brief was written by Prof. Rodney A. Smolla, visiting professor of law at the Duke University School of Law in Durham, N.C.  Prof. Smolla is a legal and constitutional scholar who serves on the advisory council of The Media Institute’s intellectual property program, the National CyberEducation Project, as well as the Institute’s First Amendment Advisory Council.

The brief can be viewed on The Media Institute’s website at

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