Nimmer on Aereo: It's Illegal

Law Professors Lambaste Second Circuit Decision

A pair of leading copyright law professors with scores of papers and books under their belt have told the Supreme Court that Aereo's service is illegal. They say that in denying broadcasters request for an injunction against Aereo, that court got just about everything wrong, misconstruing the "text, structure, specific legislative guidance, and general legislative purposes of the 1976 [Copyright] Act."

That came in an amicus brief to the Supreme Court from Berkeley Law Professor Peter Menell and UCLA law professor

David Nimmer, who along with his father wrote the book, literally, on copyright law, Nimmer on Copyright. (Nimmer has testified about copyright law in Congress on behalf the National Association of Broadcasters).

In their brief, they say that the Second Circuit handed Aereo a copyright "get-out-of-jail-free card" that unravels the basis of the Copyright Act of 1976 that the Congress has reaffirmed  numerous times.

"That ruling cannot stand," they argue.

The key point is whether Aereo is providing a public performance of a copyrighted work without compensation, or providing the technology to remotely record and access free TV signals over the Internet. The professors argue it is clearly the former. "We respectfully submit that the Court should hold that Aereo’s service infringes the copyright owners’ exclusive right of public performance," they said.

The Supreme Court is hearing broadcasters' appeal of the Second Circuit's refusal to grant an injunction against Aereo, which has continued to roll out its TV station-delivery service. Aereo and its supporters have yet to file their briefs. The Supreme Court is hearing oral argument April 22.