\u3ci\u3eAereo\u3c/i\u3e, In-line Linking, and a New Approach to Copyright Infringement for Emerging Technologies

In an ever-changing technological landscape, strictly adhering to the language and definitions of the Copyright Act in cases involving emerging technologies may contravene the purpose and intent of copyright law. However, the Supreme Court’s 2014 opinion in American Broadcasting Cos. v. Aereo Inc. puts forth a commercial interest rationale that suggests copyright infringers may no longer be able to avoid liability based on perceived technological loopholes that have typically absolved online infringers of infringement liability. This Note argues that Aereo’s commercial interest rationale paves the way for a new approach to technologically complex copyright cases, particularly where in-line linking is involved. This Note surveys traditional copyright law and the evolution of the World Wide Web and discusses opinions from the Ninth and Seventh Circuits that reveal a tendency of courts to use technological distinctions to find that in-line linking is not an infringing use of copyrighted content on the Internet. This Note analyzes the Supreme Court’s rationale for deciding Aereo, with emphasis on the majority’s commercial interest” discussion. Finally, this Note explains how the rationale in Aereo seamlessly translates to in-line linking of Web content, concluding that an application of the “commercial interest” analysis could change the outcome of future copyright infringement cases involving in-line linking of creative content