The Revolution Was Not Televised: Examining Copyright Doctrine after Aereo

Abstract

In Aereo, the Supreme Court rested its holding on Aereo's similarity to cable, the technology to which Congress responded when crafting the current public performance right. Despite the Court's narrow focus, the case may significantly impact the contours of copyright doctrine in many contexts. This Note examines the doctrinal impact of Aereo by explaining the case and its implications for the public performance right. Though the Court sought to cabin its holding, it exerts force on existing doctrine. This Note will show that the Court’s decision achieved two doctrinal results: (1) it transformed the “volitional conduct” test for establishing direct copyright liability into a proximate cause inquiry, and (2) it clarified what constitutes the “public” for purposes of the Transmit Clause, focusing on the relationship between the recipient of a transmission and the underlying copyrighted material.