Retransmission, Revisited: Will Aereo Prevail? ? Legal Intangibles

Well, it seems that we may have another interesting copyright situation similar to my post about Zediva, but this time involving over-the-air broadcasts to your PC, smartphone or tablet.? As initially reported through various media outlets such as Wired.com, technology startup Aereo claims to have found a way to provide internet-delivered TV to your laptop/tablet/smartphone without attaching a local antenna for a low monthly subscription price.? On its face, this seems pretty nifty?except that unlike cable and satellite TV providers, Aereo would not make any payments to broadcasters for the retransmission.? ?Copyright infringement? Hmmm?perhaps a little background is in order.

The U.S. copyright law (17 U.S.C. Section 101 et seq.) grants certain exclusive rights to authors of original works that are fixed in a tangible medium of expression ? in this case, motion pictures (such a television shows and movies).? One of these exclusive rights is the right to distribute the work ? such as the primary transmission of such works over the airwaves.?? For the purposes of this post, we will simplify the license flow and just say that broadcasters secure these rights to transmit such copyrighted content to your television ? which you watch for free because the advertising revenue generated from commercials aired during the programming.? Since changes to the Copyright Act of 1976, cable and satellite TV providers have been required to pay a nominal cable compulsory license (17 U.S.C. 111(c)) or satellite compulsory license (17 U.S.C. 119) for the retransmission of over-the-air broadcasts to their subscribers.? Aereo, however, seems to think that it is not subject to any such compulsory license whatsoever ? by placing thousands of antennae in an area where they roll out the service, they pair each antenna to a specific subscriber.? In so doing, they essentially make the argument that their service is the same as using your TV to receive over-the-air broadcast signals?just without the direct local connection to an antenna.? Interesting?but is it infringing?

I have to tip my hat to the continued creativity exhibited in the marketplace regarding commercializing copyrighted content without the blessing of the copyright owner (or its authorized licensees).? Unlike the failed effort of Zediva and its attempts to circumvent licensing costs by purchasing DVDs for viewing by subscribers one-at-a-time, this case presents a far more plausible ?technology work-around (even though the commercial viability of deploying and maintaining potentially millions of tiny antennas remains questionable from my perspective). More importantly, Aereo represents a far more plausible legal argument?even though I remain skeptical.? You see, the Aereo service is not really the same as watching over-the-air broadcasts on your TV because there is a retransmission of the signal from a remote, unattached (yet dedicated) antenna over the internet to your end-user device.?? Another company (ivi TV) tried to do something similar with its web-based streaming service by claiming it was legally retransmitting unmodified over-the-air broadcasts through its service by paying a nominal compulsory license fee for the secondary transmission?but after suit was brought by broadcasters and content owners, ivi TV lost its case at the trial level in federal court in the Southern District of New York, stressing that ivi TV was not really a ?cable system? under the Copyright Act and needed to comply with FCC rules and regulations as well as obtain the consent of the copyright owners.? The case is currently on appeal, with a decision likely in the next few months. ?Seems to me that it depends on whether internet services will be given the same treatment as ?cable systems? under the Copyright Act.? Aereo has an interesting argument (and the $$$ to make its case with Hollywood heavy hitter Barry Diller behind it)?but time will tell if it is a winning one?

Yep?Aereo is ?airing? some interesting issues, and hopefully the courts will weigh in with some guidance (assuming the broadcasters don?t otherwise partner with Aereo in the process?litigation is still pending, and as experience shows, anything can happen).? Until then, tune in with you tablet while you still can?;)

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Source: http://legalintangibles.com/2012/03/retransmission-revisited-will-aereo-prevail/

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