Weighing Down the Cloud: The Public Performance Right and the Internet After \u3ci\u3eAereo\u3c/i\u3e

In American Broadcasting Companies, Inc. v. Aereo, Inc., the Supreme Court concluded that Aereo’s streaming of broadcast television programs over the Internet to its subscribers was an infringing public performance under the Copyright Act of 1976 (“Copyright Act”). The Court interpreted the “Transmit Clause” of the Copyright Act to mean that when determining whether a performance created by a transmission is to “the public” the relevant audience is not that of a particular transmission, but of the work being transmitted. Thus, it did not matter that Aereo operated by creating unique copies and via separate transmissions available to only one subscriber when the same underlying work was being transmitted. However, the Court’s interpretation has the strong potential of sweeping up formerly legal activities of the developing cloud computing industry due to key shared features between it and Aereo: the remote storage of unique copies of the same work, transmitted to subscribers through separate transmissions. The Court’s opinion offers lower courts and cloud developers little guidance on how to apply the new interpretation, thereby creating legal uncertainty for future cloud developments and copyright law generally. This Note first reviews the development of copyright law, focusing on the revision to the public performance right, with special emphasis on how Supreme Court cases involving cable television influenced the passage of the Copyright Act and inclusion of the Transmit Clause. It then discusses subsequent technological developments that challenged the meaning of the public performance right, highlighting an earlier but similar case that reached the opposite interpretation of Aereo. Next, this Note turns to Aereo, analyzing the opinion and discussing alternatives to the Court’s interpretation that would still protect copyright holders. This Note concludes by arguing that the Court’s decision likely will reduce investment in cloud technologies as developers will be uncertain of the legality of their services, while likewise encouraging litigation against existing technologies that, following Aereo, might be construed as engaging in infringing public performances