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ASCAP and Legal Foundation Seek High Court Review In Aereo

Add the American Society of Composers, Authors and Publishers and public interest law policy center the Washington Legal Foundation (WLF) to those who agree with broadcasters that the Supreme Court should weigh in and block Aereo.

The foundation backs intellectual property protections for content owners. Amicus briefs were due Tuesday (Nov. 12) in ABC v. Aereo and both groups filed briefs with the court. Actually, ASCAP was the lead on a filing by a number of music publishing and artist groups including BMI, the Recording Industry Association of America and SESAC.

Both ASCAP et. al. and the Legal Foundation said that the Second Circuit got it wrong when it denied an injunction and signaled it thought Aereo was not a performance without compensation in violation of copyright laws. They also took issue with the Second Circuit decision in the Cablevision Case, which the court was relying on in ruling against the broadcaster appeal of a lower court's refusal to enjoin Aereo.

In the Cablevision case, the Second Circuit held that Cablevision's remote DVR functionality residing in a server farm was not a performance since each DVR function was associated with an individual user and was considered remote access to a fair use copy, not separate performance.

WLF said that Cablevision was wrongly decided and should not be used to justify allow Aereo to continue to operate. Aereo argues that via its antenna farm it is simply providing online access, including remote DVR functionality, to copies of the free, over-the-air, signals its subs are entitled to.

WLF is deeply troubled, however, by the Second Circuit's decision in this case, which threatens to legitimize a business model based entirely on the unauthorized, for-profit exploitation of the copyrighted works of others. "Unless
discretionary review is granted by this Court, copycat services are sure to follow the blueprint endorsed by the Second Circuit for circumventing the longstanding protections afforded by federal copyright law."

"This case is about a misinterpretation and curtailment of the Copyright Act's public performance right at precisely the time when compensation from public performances, specifically via digital transmissions, is of critical importance to Amici and their members," ASCAP said in its filing.

ASCAP says the mistake the court made in Cablevision is being compounded at the speed of broadband.

"As many in the copyright community predicted, Cablevision's erroneous interpretation of the public performance right created a problematic and unintended loophole," ASCAP said. "As a result, service providers can avoid obtaining licenses and paying for the right to publicly perform copyrighted works by structuring their businesses so that individual copies are used to transmit the performances of audiovisual programs or songs to their viewers or listeners."

And in a world where almost all video viewing may be online, an Aereo decision widening that loophole will lead other services to perform the same "sleight of hand" by which Aereo "transforms for-profit, commercial broadcasts, the paradigm of public performances under the Copyright Act, into putative private performances."

WLF agrees. "[T]he very real possibility exists that cable providers will soon no longer have any incentive to negotiate retransmission fee arrangements with broadcasters."

Aereo has not yet responded to the broadcaster request that the Supremes hear their appeal. It asked for and got a 30-day extension from the original Nov. 12 deadline for responding.