THE ENTERTAINMENT, ARTS and SPORTS LAW BLOG

Post-Aereo: Has The Supreme Court Clouded the Future?

By Barry Werbin
Herrick, Feinstein LLP

By now, everyone is probably tired of reading the myriad blogs and articles on the Supreme Court's June 25th decision in American Broadcasting Company, Inc. v. Aereo, Inc. Yet the real question raised by the decision -- which did not set any bright-line tests -- is what its impact will be on other existing and future technologies that permit consumer end-users to access subscribed content anywhere in the world and at any time over the Internet.

In the 6-3 decision, the majority took a fairly straightforward approach in going through the two primary issues presented: whether Aereo was engaging in a "performance" by using its system of dime sized antennas to deliver one-to-one content to its subscribers, and whether such performance was "public" so as to impose direct copyright liability on Aereo. The court answered both questions in the affirmative, pointing out that even a home user watching television "performs" a broadcast merely by turning on a television and flipping channels, and that Aereo essentially acted no differently than a cable system, even when it only enhanced its subscribers' ability to receive and view over-the-air broadcast programming.

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About Elissa

Elissa D. Hecker practices in the entertainment and business fields. Her practice focuses on copyright, trademark and business law.  Her clients encompass a large spectrum of the entertainment world. In addition to her private practice, Elissa edited the books Entertainment Litigation - Know the Issues and Avoid the Courtroom, In the Arena and Counseling Content Providers in the Digital Age.

Elissa is Chair of the Board of Directors of Dance/NYC. She is also a Member of the Advisory Board of MARACAS and the Legal Advisory Committee of Safe Football. She is Past Chair of the Entertainment, Arts and Sports Law (EASL) Section of the New York State Bar Association, Editor of the EASL Journal, member of the Editorial Board of the NYSBA Bar Journal, and Co-Chair and founder of the EASL Pro Bono Committee. She is also editor of the EASL Blog. Elissa is a frequent author, lecturer and panelist, a Trustee of the Copyright Society of the U.S.A. (CSUSA), a member of the Board of Editors for The Journal of the CSUSA, and the CSUSA’s Newsletter Editor.

Elissa was selected repeatedly as a New York Super Lawyers Rising Star and for Top Attorneys – New York Metro Area’s Outstanding Young Lawyers. In addition, she was selected for Top Women Attorneys in New York Metro and Top Attorneys – Westchester Area’s Outstanding Young Lawyers, was the inaugural recipient of the Copyright Society of the U.S.A.'s 2011 Award for Excellent Service and received the 2005 New York State Bar Association's Outstanding Young Lawyer Award. She was previously Associate Counsel with The Harry Fox Agency, Inc. and its parent company, the National Music Publishers Association, Inc.

Practice Areas include:

Entertainment Law • Copyright • Trademark • Intellectual Property
Television • Production • Music • Dance • Photography • Internet
Media • Business • Corporate issues • Contracts • Publishing

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Photos By: Stefy Hilmer (headshot) and Christopher Duggan (Dance/NYC)