Matthew Sag (Loyola University Chicago School of Law) has posted The Uncertain Scope of the Public Performance Right after Aereo on SSRN. Here is the abstract:
The Supreme Court’s recent majority decision in American Broadcasting Companies v. Aereo, Inc. 134 S.Ct. 2498 (2014) holds that a service allowing consumers to watch broadcast television programs over the Internet virtually simultaneously with the original over the air broadcast directly infringes the copyright owners the exclusive rights to 'perform the copyrighted work publicly.' The majority overrules the Second Circuit ruling in the same case, and throws into doubt one of the central holdings in the Second Circuit’s Cablevision decision.
The majority’s 'looks like a cable system' approach makes the public performance right almost incomprehensible. This Article considers a number of questions left open by the Aereo decision relating to specific technologies, including remote DVRs, devices that allow the consumer to pause and rewind live television, and cloud computing generally. It also considers whether the Court's decision in Aereo portends the use an effects-based approach to expand other exclusive rights under the Copyright Act in future cases. Finally, this Article concludes with a concise explanation as to why Aereo would not have prevailed under a fair use analysis. Judge Chin’s intuition that Aereo’s design was a mere 'Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act,' was spot on; however this technological contrivance should not have been the foundation for the Supreme Court's legal contrivance.