"Oh," say a bunch of Canadian copyright holders and others about all that glorious and free American TV: Allowing the Aereo model is jeopardizing a host of treaties by allowing a company to deliver those TV signals over the Internet without paying copyright fees.
In an amicus brief filed with the Supreme Court, the Canadian Media Production Association, Music Canada, the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA) and many others, said that there are a number of international agreements that rest on an interpretation of copyright law that forecloses "bypassing the communications to the public [performance] right by using point-to-point technology."
They also point to the "Charming Betsy" doctrine, which holds that acts of Congress should never be construed to violate such treaties "if any other possible construction remains."
They argue that even if the performance right were ambiguous in statue, the Charming Betsy doctrine would trump it.
"While amici believe that the language of the Transmit Clause unambiguously leads to the conclusion that Aereo’s transmissions are public performances, the treaty obligations entered into by the United States on multiple occasions would require the same conclusion even if the statutory text was ambiguous," they conclude.
And sounding very much like the National Association of Broadcasters and affiliates' brief, also filed this week, they said that Aereo's "wastefulness stands in marked contrast to the genuine innovation being achieved within the framework of the law" by services "like Netflix and Hulu."
The treaties at issue, they say, include the WIPO [World Intellectual Property Organization] Copyright Treaty; the WIPO Performances and Phonograms Treaty; the Free Trade Agreement, U.S.-Australia; and the North American Free Trade Agreement.
They say all those treaties provide a performance right—subject to payment—"even when the technology used to effect the transmissions enables members of the public to access works or performances of works 'from a place and at a time individually chosen by them.'"
Also on the brief were Mexican-based associations, parties to the North American Free Trade Agreement and various other international associations.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.