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Within the Copyright Act, innovation and technological advances are the bases for the enactment or amendment of many sections. Technology is often fundamental to the language of the section, and the underlying technology matters even when it is paired with a technology-neutral section. And because technology matters, how it functions could be essential in resolving a copyright infringement dispute.

One such provision, 17 U.S.C. § 110(5), allows small businesses to “publicly perform” copyrighted music via a radio, as long as certain conditions regarding the equipment used are met. Only small businesses are eligible, and the proprietors can only use systems that are commonly found in homes. In addition, the performance cannot be retransmitted to another location, and only a single receiving apparatus can be used. Known as the “Aiken” or “Homestyle” Exemption, when Congress codified the § 110(5) of the Copyright Act of 1976, these seemed like reasonable limitations. At the time, lawmakers did not contemplate or even envision the existence or commercialization of wireless speaker technology. Now, however, one can connect a cellphone, iPod, MP3 player, or other portable electronic device via Bluetooth, standard radio, or even the Internet, to a wireless speaker. When determining whether a system falls within the Homestyle Exemption, both Congress and the courts have stressed the importance of examining the underlying technology. Technology matters in the Copyright Act.

The Supreme Court’s recent decision in American Broadcasting Cos. v. Aereo, Inc. has thrown the principle of “technology matters” into flux. The majority affirmatively construed the Transmit Clause as it related to several technology-specific sections of the Act in a technology-blind manner; indeed, it held that the underlying technological architecture of an allegedly infringing system was irrelevant. This decision may have wide-reaching effects, and cannot be viewed in a vacuum. When examined in relation to other sections of the Copyright Act of 1976, it behooves us to question whether this is what Congress intended.