The Aereo Decision – Canadian Content?

Careful observers of the United States Supreme Court's 6-3 decision yesterday in American Broadcasting Cos., Inc. et al v. Aereo, Inc. may have detected a small Canadian flavour in the majority's reasoning. As will be revealed, this was no coincidence, and McCarthy Tétrault played a small role by filing an amicus brief on behalf of a coalition of international rights holders and copyright scholars that drew the Court's attention to the need to interpret the US Copyright Act in a technologically neutral way, as similar copyright laws have been construed by the Supreme Court of Canada and the European Court of Justice to conform to international copyright treaty law.¹

Aereo, a disruptive Internet-based service provider, had successfully argued in the Southern District of New York and the Second Circuit that it owed no copyright royalties relating to its transmission of television broadcasts over the Internet to its subscribers. Unlike a traditional broadcaster, Aereo