Rusty Close and Austin Padgett explain why the Supreme Court deemed Aereo's antenna‑farm model a public performance that "looked like cable."
In this episode of No Infringement Intended, Rusty Close and Austin Padgett blend holiday‑episode nostalgia with the evolution of recording technology — from Betamax's fair‑use time‑shifting to Cablevision's cloud DVR — and explain why the Supreme Court deemed Aereo's antenna‑farm model a public performance that "looked like cable." By examining Justice Scalia's colorful Aereo dissent, they touch on how design choices can turn a platform from a tool into a performer, and what this decision could mean for modern platforms, such as AI.
No Infringement Intended, hosted by Rusty Close and Austin Padgett, is your go-to podcast for exploring the fascinating intersection of intellectual property and pop culture.
No Infringement Intended — Is My Private TV Stream a Public Performance?
Hosts: Austin Padgett and Rusty Close
Recorded: November 6, 2025
Aired: December 12, 2025
Austin Padgett (00:13):
Come one and come all. Welcome to No Infringement Intended, an intellectual property podcast of our law firm, Troutman Pepper Locke, hosted by the so-called bad boys of intellectual property, Rusty Close, and Austin Padgett. As always, I'll ask that you leave five stars for us. Make sure you're subscribed, do all the things on your platform. That really helps us share the show with other people, build our community, and make one more step towards world domination. Well, let's go back and start with our mailbag again and see what we find in here. Well, first one in is Morgan writes in and asks, “Will you do a true crime episode?” I'm at a loss. Rusty, what are you thinking?
Rusty Close (00:55):
I'm trying to think how we tie together true crime and our true passion: intellectual property. One thing that I thought of is, could we do an episode about whether the Zodiac killer could copyright his cipher? Would that be something we could work with?
Austin Padgett (01:10):
Oh, I love it. There are those series of cases about whether you can profit from your crime.
Rusty Close (01:16):
Like if you write a book about it.
Austin Padgett (01:17):
Yeah, I won’t start mentioning names. Morgan, we'll start working on it. I can't promise it'll be in the next few episodes, but we will start thinking in that direction as I know that's a hot place to go, and maybe we can get our numbers up in a certain demo for that.
Rusty Close (01:30):
No bad ideas in a brainstorm.
Austin Padgett (01:32):
That's right. Our next letter comes in from Zachary, writes in and he asks, “Will you guys have a holiday episode this year? You didn't have one last year.” That's an astute observation, Zach, and if I can call you Zach instead of Zachary, but I think you're right that now we are in season two: it's time for a holiday episode, Rusty. Why don't we go a little meta on this and we'll talk a little bit about holiday episodes themselves. We've talked about our favorite television shows through the years between ourselves, many of which overlap, but I don't think we've ever gone down this rabbit hole. What do you make of holiday episodes generally?
Rusty Close (02:10):
You've got the two versions. You've got the sort of holiday specialty show, and that kind of brings to mind the legendary Star Wars holiday episode.
Austin Padgett (02:19):
Oh, yes.
Rusty Close (02:19):
Legendary, maybe not in the best way. Then you've also got the typical drama or comedy that does a holiday episode as part of their ongoing series. I definitely have always been a big fan of The Office. They did some good holiday episodes. One of my favorites, I think was the first holiday episode they did, and it's the Yankee Swap. Michael Scott wants to have booze at the party. He goes to the liquor store, and he asks the clerk, he says, “Alright, you're the expert. Is this enough to get 20 people wasted”, or he says, “plastered”, I think. The clerk looks at him and says, “15 bottles of vodka? That should do it.”, and just the deadpan of “that should do it” always kills me.
Austin Padgett (03:04):
Oh, I love it. Yeah. One weird thing when I revisit holiday episodes is one of my favorite shows wasn't streaming or even available on DVD or anything like that for a long time. I actually have a huge collection of VHS tapes that I recorded from television many, many years ago. I don't remember when we got cable television because we weren't early adopters. Did your family have cable early on, Rusty?
Rusty Close (03:31):
Yes, of course.
Austin Padgett (03:32):
Okay. Early adopters.
Rusty Close (03:34):
Yeah, baby.
Austin Padgett (03:35):
Okay. Yeah, I'm sure my mother would tell me differently. I feel like it was probably late middle school, maybe early high school when we got cable. It might've been earlier than that.
Rusty Close (03:45):
So, up and through early high school, are you watching just over an antenna? Classic, what you could pick up through the airwaves?
Austin Padgett (03:52):
Yeah. Your classic broadcast.
Rusty Close (03:54):
Unbelievable. Were you videotaping shows off of that signal?
Austin Padgett (03:59):
Correct.
Rusty Close (04:00):
Wow.
Austin Padgett (04:01):
Yeah, so that's what I've got.
Rusty Close (04:03):
No wonder you were so good at piano, right, and learning to play instruments, and I wasn’t, because I was busy watching cable TV, and you didn't have that luxury.
Austin Padgett (04:11):
Yeah, we had basically three channels. Any repute and ability to get them in really good order. There was, I think we had 3, 5, 10, and 44 were the four main ones. Then there were a few others that I was never really sure what they were. They never really made sense, and they didn't really, the fidelity wasn't all that great. They were pretty fuzzy.
Rusty Close (04:31):
Wasn't what you were looking for.
Austin Padgett (04:32):
Yeah, for sure.
Rusty Close (04:33):
All right. So, you have this collection of VHS tapes.
Austin Padgett (04:36):
I do.
Rusty Close (04:36):
That you painstakingly recorded.
Austin Padgett (04:38):
I would tell you it's my favorite show of all time. You have any guesses?
Rusty Close (04:42):
I'm trying to think of when the era would've been, that you would've been recording these, and X Files is the thing that came to mind.
Austin Padgett (04:50):
Oh, that's a good guess. That's a really good guess. That would be, I'm almost positive we had cable, at least towards the end of The X Files, but none of that matters, and certainly my best friend Gary and I would watch X Files. I think that was a Sunday night show and we would talk about it on Monday, typically.
Rusty Close (05:06):
You and Gary with your water cooler talk.
Austin Padgett (05:08):
Absolutely, there in high school. A nerd’s delight for sure. Now this is The Wonder Years.
Rusty Close (05:13):
Okay. Alright. Yeah.
Austin Padgett (05:14):
If you recall that show. Still probably my favorite show of all time. I have the originals on VHS, with the commercials and everything sitting around. The reason that it had this issue is that it has so much music, and so the licensing was really tough, which isn't what we're going to talk about today, but it has one of my favorite – I mean, because it's my favorite show – probably my favorite holiday episode as well, in season two, when the family gets the color television. It's so poignant, and that show has everything in it.
Rusty Close (05:45):
Yeah, that's a good one. I mean, you being a child of the fifties and sixties, a true baby boomer at heart, I could see how you would relate so closely to it.
Austin Padgett (05:54):
That's exactly right. I'm watching it right now with my kids, and it's crazy how I've always lined up with Kevin, the child character, and now I'm more with the dad of just like, yeah, we shouldn't spend money on this new car. Everybody needs to work hard, and all these sorts of things.
Rusty Close (06:10):
Are you making the kids watch the VHS copies or are you streaming?
Austin Padgett (06:14):
They are streaming now. I guess they figured out the licensing rights and everything. Although I think there are some music replacements here and there.
Rusty Close (06:22):
There are shows that have done that, where they just couldn't get the rights, and they had to swap out a song.
Austin Padgett (06:26):
Yeah. Famously, I think Dawson's Creek, when you stream it, it does not have the original theme song tied to it.
Rusty Close (06:33):
I think that's right. Yeah.
Austin Padgett (06:34):
There you go. Before we go too far, I want to define some terms. As I mentioned a few episodes ago, we actually have numerous members of the younger generations listening. I like to think that classroom teachers are out there assigning our podcasts for required listening and that students are putting us on double speed just to get through it.
Rusty Close (06:52):
Yeah, I mean, and part of our payola campaign is paying off in terms of making the teachers assign this to their kids, so that's working pretty well.
Austin Padgett (07:01):
That’s right, yeah. Just wait until we start pushing that merch. I guess “six, seven” out there for all the kids, whatever that means.
Rusty Close (07:07):
Absolutely.
Austin Padgett (07:08):
Anyway, their generation has been gracious enough to let us, at least, know kind of their trending language and these types of things. But when I talk about VHS, that stands for Video Home System. It really means the cassette tape that we would put into VCRs. That stands for a video cassette recorder. That machine allowed us to play movies from a cassette. But you could also put in this blank cassette in it, and you could record television programming straight off of the TV. But it was in real life, so you'd have to be there at the exact same time that you need to press record or whatever. The challenge of course, in recording your shows on VHS, is that it's deeply analog in process. Some VCRs would have the scheduling for you so that you can leave the tape in, and it would automatically record your television on a designated channel and time, assuming that you had room left on the cassette tape. I think ours were always about 90 minutes long, but I don't think our VCR had scheduling. I don't know if you remember what your setup was at your house, Rusty.
Rusty Close (08:12):
We had scheduling. I mean, you had to know what you were doing. I mean, it wasn't like an intuitive interface or anything like that. You had to work your way through, but you could set date, time, and I don't know that you were setting channel, maybe you had to have the TV on that channel when you were setting it to record and hope that nobody changed it in the interim.
Austin Padgett (08:35):
Gotcha. Yeah, so I think ours, it was this huge silver box, and it weighed an absolute ton. I know it's about as wide and had the depth of the television itself, and so it's just a monstrosity. The reason I'm bringing this up is that we're going to talk about three cases today, but two are really laying the groundwork for a more recent case, at least within the last decade or so. Before we get too bogged down, our listeners are probably out there wondering, what are we talking about? Recording these shows? Surely that triggers something. To quickly get that out of the way, we'll point them to the Supreme Court's Betamax case from 1984. I often joke around that I view this case as the court's most important 5-4 decision.
Rusty Close (09:21):
I mean, we know you're a hit at all dinner parties, and I'm sure this just goes right along with that.
Austin Padgett (09:26):
I keep sharing all my jokes in here, so I've got to get some new material.
Rusty Close (09:29):
You have to update your material.
Austin Padgett (09:30):
Yeah, absolutely. Here’s the quote from the case: “The question is thus whether the Betamax is capable of commercially significant non infringing uses”, and the Betamax is like a, it's a VCR. You can put a tape in and record it. Then it goes on and describes and says, well, there are “private non-commercial time shifting in the home uses”, and “when one considers the nature of a televised copyrighted audio visual work, and that time shifting merely enables a viewer to see the work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced does not have its ordinary effect of militating against a finding of fair use.” It's a fair use finding that when I recorded the entire series, of every episode of its entirety of the Wonder Years, I was time shifting it to watch it 40 years later.
Rusty Close (10:23):
Many years down the road.
Austin Padgett (10:25):
Yeah, yeah. Here we are. Though, I say that – we don't have a functioning VCR right now, so all these tapes are just relics.
Rusty Close (10:32):
I wonder how easy it is to find one. You say one of those things where, “surely I can get a VCR”, and you probably start looking around and it's 50 bucks minimum or something like that just to find one you could play.
Austin Padgett (10:42):
Dude, they are much more expensive than that.
Rusty Close (10:44):
Are they really?
Austin Padgett (10:44):
Yeah. The market for a working VCR is crazy. If you go online, I did this – total side note, that movie Space Camp, I don't know if you remember –
Rusty Close (10:53):
Of course.
Austin Padgett (10:53):
I've got that on VHS as well, and I could not find it anywhere, streaming or whatever. I wanted to show the kids, so I was like, well, I guess we should get a VCR. I assumed 25, 50 bucks, not bad. I'll bite the bullet and then we've got a VCR, and we can really get into the depths of my collection here. No, man, we're talking $600 at that time.
Rusty Close (11:13):
No way.
Austin Padgett (11:14):
Yes, for a used VCR. I mean, there are, I think only a handful of companies even still making them new.
Rusty Close (11:20):
Sure.
Austin Padgett (11:21):
They are professional level VCRs, or at least they tout to be.
Rusty Close (11:26):
Of course.
Austin Padgett (11:27):
This was a few years ago as I was looking into it, maybe the market's calmed down a little bit.
Rusty Close (11:31):
The market's cooled. This is during COVID, right? When everyone's at home?
Austin Padgett (11:34):
Yeah. Yeah, exactly. Maybe actually, I think it was during COVID, now I think about it. Maybe it's like vinyl where there was, at one, there were only a few machines in the US that could press vinyl anymore. Now they're all over the place. You and I could probably find one ourselves and start our own.
Rusty Close (11:50):
My beloved wife, brilliant. Just as smart as she can be. She was an English major in college, and she then went on to law school and she took one of those tests, one of those aptitude tests, in high school to kind of, project out careers you might want to consider. The top career for her was VCR repairman. We've often joked that it's lucky she didn't go into that field because we'd be a little bit obsolete by now.
Austin Padgett (12:17):
What a calling. That’s so specific. I love that.
Rusty Close (12:18):
Yeah, I mean. It's so specific. It really is something you have to be called to do, I think.
Austin Padgett (12:24):
I don't even remember. I'm sure we had a problem – I didn't even know that was an option.
Rusty Close (12:28):
Well, I mean when we were in high school 30 years ago, it probably looked like a pretty promising gig. I think we're going to get in today why that ended up not being the case.
Austin Padgett (12:37):
Yeah, yeah, exactly. I'll have to think more about this. I don't remember VCRs being particularly expensive, particularly towards the end.
Rusty Close (12:43):
Yeah, right. That's why I thought they got to be pretty cheap at this point. They're just disposable goods almost.
Austin Padgett (12:48):
Right, yeah. But I guess a lot of them didn't end up working and now she could really make a killing off of that. The time is now.
Rusty Close (12:55):
Name your price.
Austin Padgett (12:57):
Let's get past VCRs and we go a few more years down the road and we have this technology called the DVR, which is a huge leap in technology at the time. Rusty, tell us about DVR and how it changed your life entirely.
Rusty Close (13:11):
Well, so I graduated, finished going to college in 2000, and started working. I remember that Christmas, I was living at home with my parents, and I bought for them for Christmas, wink, wink for them, a TiVo. What an unbelievable piece of technology in the early 2000s. You go from having to set this VCR, figure out when this is going to be on, can I program it for the right time, and hope that nobody changes the channel, to this box that you plug in. It's got its own intuitive interface. You can set it, tape this show whenever it comes on, anytime it comes on. There was limited storage because it was storing it on the device. But other than that, it was such a tremendous leap forward. It's almost like it skipped eight iterations of technology in the jump forward from the VCR.
Austin Padgett (14:08):
Yeah, everyone was waiting for this thing. I think it wasn't that difficult to imagine that there had to be a better way by about 1999 when these things launched. The DVR, I should mention, stands for Digital Video Recorder. It's just a hard drive that sits on your TV and records TV. That’s perfect – that takes us to the first case that I wanted to talk about, which is often called the Cablevision case. In this case you have Cablevision, which is a company that no longer exists, but when it did, it provided cable television to customers. Maybe I'll back up and briefly explain what cable television is as well. I mean, we're many years down the road for some people when some homes don't even have a hole punched in the wall right now. Before streaming took over, television used to come in two primary forms.
The old way is through the air. That's the kind we had early on growing up. A television program was broadcast on radio frequencies and televisions would “tune in” to that channel to get the program. The second way is what I view as the newer way. Though cable TV actually started in the 1940s and 50s, and that's where a provider would come to your house, put a small hole in the wall from the outside, and run a cable up to your television. That cable would distribute whatever channel packages that you happened to order. I think typically it's kind of like satellite radio. They'll give you all the channels early on and get you a little hooked. Then after three months or so, you got to start paying for the package that you want. You remember how many channels you had, Rusty, growing up?
Rusty Close (15:47):
I think that at that time, especially early eighties, which is when I think about the time, I remember us having a cable box. I also think it was pretty regional. If you grew up in a different part of the country, what you may remember as your cable box is likely to be entirely different from the type of cable box I had. Not that you were getting different channels or anything like that, but it was a localized thing. It hadn't all been consolidated yet, but what I remember is a box that had somewhere in the neighborhood of 15 buttons going horizontally across the box. Then there was a switch that had three positions. It's kind of like we've talked about in some of our guitar cases. That would've given you about 45 channels, right? 15 times three. It was somewhere in that neighborhood, and that's when you start getting TBS and USA network. If you paid the extra dough, Showtime, HBO, Cinemax and the movie channel, I think those were the paid channels for the most part. But then you also, it was the first time you had those, what we think of as cable channels in addition to your networks, your local ABC and NBC affiliates.
Austin Padgett (17:00):
I can hear the shouts from Creekland Middle School right down the road where our friends in sixth through eighth grade – shoutout to the Grizzlies – are thinking: Austin, Rusty, if you guys have cable, did you still have to use the over the air method to get those basic channels? That's going to become an important point later. Your cable provider had a deal where they paid the networks to retransmit and redistribute those basic channels through the cable. You would get everything through your cable set up and you didn't have to have the rabbit ear antennas shooting out as well and switch back and forth. Back to Cablevision, that company was one of many in the United States who would come to their customer's homes, run a cable to the television, and around 2006, Cablevision starts to offer a platform called the Remote Storage Digital Video Recorder.
That is the RSDVR. Rather than have a hard drive box in your living room sitting on top of your TV, or on the table underneath, your recordings would take place on Cablevision servers at their facility. We would now call that a cloud, but that language didn't exist then. You would still need to record your shows, and you would play them back the same way, but the recording would live outside of your home on a server through your provider. Important here is that a copy of each show was a unique copy on Cablevision's server. If you and I both recorded the newest episode of Lost in the early 2000s, that server had separate recordings for each of us. When I choose to come back and watch my copy, it was my copy and yours would be yours. Yours might actually be a little different because of local advertising, or perhaps down here you would get storm warnings a lot. The weatherman would break in right in the middle of the important show. That was always a bummer.
Rusty Close (18:54):
I think people now are familiar with On Demand, you go to your interface, you say, “Hey, I want to watch this episode of Lost.” The distinction here is this was actually a recording of the over air broadcast. I think you can think of it as somewhere on external servers, there's the Austin mailbox, there's the Rusty mailbox, there's big Kev’s mailbox, and our versions are stored locally. The versions that were broadcast in our areas, that's what we're going to be able to access.
Austin Padgett (19:25):
That's right. Yeah. I debated whether to include this, but you should also think about some of these services provided little tools like “Skip Ahead”.
Rusty Close (19:35):
Sure. So did TiVo.
Austin Padgett (19:36):
Yes. You could skip commercials pretty easily, and in some instances, I believe there were kind of automatic replays where it would just automatically jump commercials. You start thinking about the economics of this and why this might matter to one party or another.
Those dollars start to add up. A group of television program networks sue Cablevision, and they argue that it basically boils down to three things. I'll kind of tell you what they are and the answer for each of them so that we're moving through this case pretty quickly. This is still a setup case, even as interesting as it is. The first argument is that the technology enabled an unauthorized copy of the television program to be made. That is, the technology allowed Cablevision's customers to make an unauthorized copy of television programming. Where the court – and when I say court here, I'm talking about the appellate court decision – where that court comes down, is that it says that the user is selecting the items to record, much like Betamax, me and my VCR. The VCR is a tool for me. Same thing for the remote DVR, that I'm using this as a tool.
I'm the one that's, although it's enabling me to do so, I'm the one making the decision to record things as the user. That gets you back into Betamax because what I'm doing is I'm time shifting my watching, and that's apparently a fair use under Betamax – so says the Supreme Court in a divided opinion. The technology – this is the second argument – it included a buffer where about a second of the program was held in this buffer, to facilitate the process of the recording and some of the other tools that are going on underneath of the technology for this remote DVR. Where the appellate court comes out on this is that the second-ish buffer is not a real fixation, because it's not anything more than – it’s transitory in duration, it's just mere passing. It's essentially de minimis. That one second, even if because of the way the program goes, you've actually strung together one second recordings each second at a time, basically.
It's just not enough to create a fixation of the copy because it is buffered, and it's removed from the system relatively quickly. The third argument is that the actual replay of the recording – so when it's delivered from that server back to your TV, Rusty – is an unauthorized public performance. If you go back several episodes, we talk about the bundle of rights. We've talked about this in several episodes along the way, but as a copyright owner, you have the section 106 bundle of rights, and those are the rights that you actually can assert against someone. You get to be the one to handle public distribution, public performances, the copying, the making of derivative works, all those sorts of things. They're saying this is a violation of the public performance right. Where the court comes down on this is that, no, this is just time shifting.
This is a one-to-one thing. I have my recording and you have your recording. There are different recordings in the system and those are being delivered up to us and on a one-to-one basis, not in a public performance way. It's not like they had one recording of that Lost episode and we all tapped into it separately. That might look a little different, but here we got the one-to-one. That takes us through the Cablevision case, and that starts to become a roadmap for further disruption in the television space along the way. The case I really wanted to talk about today was this case called Aereo, and it's our third and last case for the day. Rusty, I'm going to describe what this company does and then you and I can try to work out the legal principles at issue and then we'll see where the court comes down on it. Aereo's promise is to provide the ability to watch this live broadcast TV. Think of young Austin with the four channels over the air, rabbit ear antennas. This is what we're grabbing out of the air. It's not cable television, but they want to give you that on any device without cable, without a box, and without a hassle, except for about eight to 12 bucks a month.
Rusty Close (23:54):
When does this technology hit the market?
Austin Padgett (23:57):
This would be, let's say 2010-ish. I don't have the exact date, but we're in the teens at this point.
Rusty Close (24:03):
I'm just trying to think about what we were using. I think at that point we still had cable. We hadn't transitioned to streaming by any stretch at that point. Even with cable though, you couldn't just pull up cable on any device. You were tied to a box. I do think Sling TV existed at that time.
Austin Padgett (24:27):
Sling did.
Rusty Close (24:28):
That would allow you to take, okay, well my cable box is in my living room, but I'm traveling. I can log into my Sling on my laptop and watch what I could be watching in my living room. It sounds like this was a version of that except for over the airwaves TV.
Austin Padgett (24:47):
Correct.
Rusty Close (24:48):
Okay. Alright.
Austin Padgett (24:49):
Yeah, so Aereo goes out and they build antenna farms. These farms contained thousands of coin-sized antennae, each of which is –
Rusty Close (25:01):
Good use there.
Austin Padgett (25:02):
I appreciate that. I've been kind of practicing that the past couple of days, once I decided this case was the one we were going to talk about. Each of those is individually assigned to a subscriber when they are logged onto the system. When you log into your Aereo account, you get tied to one of these – basically your individual antenna – that you can tune in as you need to. I don't recall, I think once you log out, it becomes free. I don't think you use the same one every time, but you have one at the time you're logging in. So Rusty, you click to watch Wheel of Fortune in the afternoon, you're assigned that antenna, and it tunes into the channel over the air frequency. It then digitizes the signal, and that's important for the analysis here. That signal is then streamed directly to you either live or through your cloud-based recording. They do allow for that in the system as well. What are your thoughts on what this sounds like?
Rusty Close (26:03):
I mean, it sounds like the Cablevision case, where it's your recording. Again, it's not on demand. It's the one that was, if it's the live stream, it's dedicated to you. If it's a recording, it is your recording – assuming that we're understanding all this correctly – but it's your recording that it's going and getting and making available to you. To me, I mean it sounds, it's not exactly the same, but I mean the principles are the same as the Cablevision case.
Austin Padgett (26:37):
That's important because that was the exact plan that Aereo had. They looked at the Cablevision case and mapped out their plan based on the reasoning in that case.
Rusty Close (26:47):
If we take the principles that were allowed there, we could make it work in this business.
Austin Padgett (26:52):
Correct. The issue that's going to haunt them here is that Cablevision was not a Supreme Court decision. It's not the ultimate law of the land, so to speak. It's a federal appellate court opinion, which is important to have. Usually that's where your case stops. The Supreme Court only hears so many cases per year. Lo and behold, Aereo is one of the cases that make it up to the Supreme Court.
Rusty Close (27:17):
So, Betamax went to the Supreme Court, Cablevision did not.
Austin Padgett (27:21):
Correct.
Rusty Close (27:21):
But this one is going to go to the Supreme Court.
Austin Padgett (27:24):
It's going. Here's what the court decides, and this is a Breyer opinion. It's 6-3, so another divided court, not 5-4, but pretty close here. They decide that Aereo is functioning like a cable company because it's providing the public a way to watch television programs over the internet. Cable companies are public performances, and that's the reason they need to pay for the retransmission package for these network shows. Even though Aereo has a unique copy and transmission, the service is providing the same program to many unrelated people, and that equals a public performance. They find that the technological trickery – seems what they're trying to convey it as – doesn’t change the fundamental nature of the service provided. The test that seems to come out of the case from the majority opinion is that, oh, this looks like cable and so we're going to adjudicate it like it’s a cable company.
Rusty Close (28:33):
I think we need to draw some distinctions here. I think what Aereo, if you think about what their business model was, their thinking is, look, this stuff is just out there in the air, and anybody can put an antenna on their house and watch this stuff. They don't owe any money to a cable company. They don't have to pay any sort of, retransmission package, or anything like that. It's just all out there, and if you harness it, you can bring it into your house.
They thought, we'll do that on a larger scale. We'll invest in these farms with all the antennae, and we'll set up the infrastructure so people can set up accounts, reserve an antenna, and then we will pull the stuff out of the air and then we'll send it to them. But we're doing it on an individual basis, so we're not a cable company that has everything available all at once to make it available to everyone else all at once. We're doing this on an individualized basis, so we're just getting the stuff that's freely out there in the air and making it available to people in a way that no one's done before. I think what you're saying is the court said, no, you're less like Cablevision. You're more like a cable company.
Austin Padgett (29:52):
Right, because I think what it probably comes down to is that they digitized the signal, and that looks like a cable signal, or at least more like a –
Rusty Close (30:01):
It stops being the thing that you grab out of the air. You grabbed it out of the air, but then you transformed it and that made you more like a cable company at that point.
Austin Padgett (30:11):
Right.
Rusty Close (30:12):
Yeah.
Austin Padgett (30:12):
Yeah. It's a public performance case. The question is, is this a public performance? Where Cablevision said no, it's a one-to-one – you go and you had your own recording and you dig it out of there – the Supreme Court comes back and says, no, that’s, in essence, a public performance. The television show is broadcast from 5:30-6:00. Even though you had your own individual recording of it, it's the same show that you're tapping into as the hundreds of other people that are watching it through the same service. That creates a public performance.
Rusty Close (30:48):
I mean, honestly, it seems like a little bit of tortured logic to me. Without really digging in, it feels a lot more like they were arguing, it’s one-to-one. Look, we're pulling it out of the air. We're making it on this person's antenna and finding a way to make it available to that person. If someone else wants to watch the same one, that's coming through their antenna and going to them directly. We’re not bringing them all in at once and then sending them out. We're not bringing them into a single place and then sending them out to multiple places. We're bringing it in out of the air in one space and sending it directly out to one person. That feels to me more like Cablevision.
Austin Padgett (31:35):
If you want a really great read, Scalia dissents here. One of our previous justices of the Supreme Court who was – if you go to law school, you're going to read a number of Scalia cases in “con” law. Either his opinions that he wrote or some of his dissents. Always known as a colorful writer, one of the great writers on the court. This is particularly in the copyright context. This is a great, it's just a great read.
He expresses some frustration, and you can read into that what you want, that the majority has twisted copyright law to reach a fair sounding outcome, but at the expense of legal clarity and technological innovation. The underlying issue is the question of how the user's conduct is the chief act in engaging the service for Scalia. Aereo is providing technology, again, similar to Cablevision, for use at the direction of the user. This looks like cable, feels like cable. It “looks like a duck” type of rationale is not satisfying for Scalia because it has no legal foundation. Instead, it's policy intuition. That's where particularly, Scalia as an originalist, and he described himself one time as a “faint-hearted originalist”, which is kind of Scalia-esque type of language. Like I said, he's very colorful in his prose. That already will upset his apple cart because once you start acting more like Congress and less like a court in his view, that's a fundamental issue for him, even outside of the Copyright Act and in any sort of structural argument for him. It's a good opinion if you want to get to know some of Scalia's thoughts but keep it within the IP process because there aren't a ton of IP cases at the Supreme Court.
Interestingly, even though he is chastising the court for seemingly engaging in lawmaking, he goes ahead and comes up with his own test. It basically is kind of this three parter: Did the defendant select the content? Did the defendant initiate the transmission? And if not, then the system is just responding to user commands. So, the user is the performer and not the system. You can see where this can invite its own trouble as well. We won't dive too deeply into this. It’s a really great dissent, super well written. I commend it to all of our readers if they want to. You can't read that case without reading the dissent, which isn't necessarily true of a lot of cases.
Rusty Close (34:15):
I mean, it is interesting, and I feel like I should go and read it now, but I do think it's important: Did the defendant select the content and did the defendant initiate the transmission? The defendant is Aereo, and the other way of saying it is, did the user select the content and did the user initiate it? If so, this isn’t Aereo being a cable company. I mean, this is different than that.
Austin Padgett (34:39):
I think the issue with that test, at least for me, in trying to think about how clear can we make it – if we're truly going to announce a bright line test – well, Aereo did make some level of decision because it said, okay, we're going to provide this universe of content. We selected the universe of content.
Rusty Close (34:56):
We're telling you what's available for you to pick from.
Austin Padgett (34:58):
Right.
Rusty Close (34:59):
Yeah.
Austin Padgett (34:59):
But that goes to the secondary types of liability typically, is it contributory infringement and those types of issues that the court doesn't get into with any meaningful explanation here. The issue before the court was one of direct infringement through the public performance rights. It's a more limited opinion in that way, but it's a fascinating case because you had a company that looked at a prior case and the case law from Betamax all the way to Cablevision, and there were other cases along the way that helped build that chain, but they saw the reasoning in those cases and built their business model around it, trying to find some angle to disrupt an industry and make their entrance. It was relatively quickly shut down through kind of new type of policy view that, “Hey, you look like a cable company.” They're like, well, if I'm them, I'm saying, “yeah, but we set this up in a specific way to try to make sure that we're adhering to copyright principles.” This “looks like” test is a very dissatisfying one. I remember when this case came down and reading it and thinking, this is one that I would've loved to be back in law school when it came out so that we could spend 30 minutes or so on it in copyright class, just batting it back and forth.
Rusty Close (36:17):
Yeah. Now you just get to do that at a coffee shop or at a dinner party.
Austin Padgett (36:21):
Yeah. That's the reason I started this podcast was to get to this single episode. Well, now's the time in the show when we dream up our worst-case scenarios. When this Aereo decision comes down, a lot of attorneys start writing their updates to their clients about how this is going to crush innovation because of this “looks like a cable company” analysis. I don't know that it necessarily had that impact, but it still might, particularly with AI. I started thinking about if I use an AI tool to search for news, it starts to look more like a publisher and less like a search engine tool, which for those two different types of purposes, copyright law is built differently. Search tools have a lot more leeway because of fair use of principles and similar types of items that allow them to make copies or thumbnails and all these types of things that cases have come along the way with, because that's what they need to function and the service they're providing isn't one of a publishing company. Now all of a sudden, we've got this “looks like” test, and we have AI technology, which not only takes search engines to the next level, but might start blending in. You could think of other examples where a “looks like” tests could start to be applied.
Rusty Close (37:40):
Well, and I mean, I think any of us, I don't know if you go to Yahoo every day or something like that, but I imagine that your Yahoo feed and my Yahoo feed are different because they're basing it on what they've shown us before and what we've shown interest in before. It already is doing some of that publishing in some ways. I mean, you could argue that it's already doing that. I mean, it's using it AI in maybe in a more rudimentary form, but you could certainly think of a scenario where you tell Chat GPT, “Hey, every morning I want you to gather for me articles on this subject, this subject, and this subject from these resources”, just so you have your daily diet of digestible news bits that's interesting to you and informs you. It does that every day. It scrapes the stuff. It takes a closer look at what you read out of that stuff and fine tunes it. But yeah, you could see how that's publishing and less about a search engine.
Austin Padgett (38:37):
Yeah, I think that covers a lot of territory. We've taken up a lot of our listeners' time, which I hope was well spent.
Rusty Close (38:44):
Always.
Austin Padgett (38:44):
Any last points?
Rusty Close (38:46):
No, no. I think this is interesting. I feel like now I'm going to have to go read a Supreme Court dissent, but other than giving me that homework, I think we're good.
Austin Padgett (38:54):
Yeah. It's just great to know that the kids now know what VCR, VHS, all that stuff means too. Thanks for listening, everyone. Be sure to like and subscribe, and if you would give us that five-star rating to help everyone know what we're up to over here, and of course, No Infringement Intended.
Copyright, Troutman Pepper Locke LLP. These recorded materials are designed for educational purposes only. This podcast is not legal advice and does not create an attorney-client relationship. The views and opinions expressed in this podcast are solely those of the individual participants. Troutman does not make any representations or warranties, express or implied, regarding the contents of this podcast. Information on previous case results does not guarantee a similar future result. Users of this podcast may save and use the podcast only for personal or other non-commercial, educational purposes. No other use, including, without limitation, reproduction, retransmission or editing of this podcast may be made without the prior written permission of Troutman Pepper Locke. If you have any questions, please contact us at troutman.com.
---------------------------------------------------------------------------
DISCLAIMER: This transcript was generated using artificial intelligence technology and may contain inaccuracies or errors. The transcript is provided “as is,” with no warranty as to the accuracy or reliability. Please listen to the podcast for complete and accurate content. You may contact us to ask questions or to provide feedback if you believe that something is inaccurately transcribed.