Asking the Right Questions in Copyright Cases: Lessons from Aereo and its International Brethren

Abstract

This chapter addresses the implications of business models that fulfill demand for individual access to works in a manner which avoids liability for infringing the public performance and reproduction rights. The authors argue that the opportunistic engineering choices that obscure some courts’ perceptions of the impact on the on-demand access market risk removing evolving markets from the scope of copyright owners’ exclusive rights. Businesses that free-ride on copyrighted works also obtain an unfair competitive advantage over copyright licensees. The authors argue that liability should not turn on ancillary questions such as who did the act, whether unique copies were made, or the size of a..