In a big boost for broadcasters in their challenge to Aereo, the U.S. government has weighed in on their side, saying Aereo violated copyright.
The opinion was noted in the Solicitor General's office brief to the Supreme Court Monday, representing the Obama Administration's Justice Department stand on the issue of whether Aereo is simply providing remote access to free TV and home taping rights, or is a violation of copyright protections.
"Under the 1976 Act, a company that retransmits copyrighted broadcast television programs must obtain a license, though qualifying retransmission services may avail themselves of the detailed statutory licensing schemes established by Congress," said the SG in the brief. "Respondent’s unauthorized Internet retransmissions violate these statutory requirements and infringe petitioners’ public-performance rights under 17 U.S.C. 106(4)."
The SG's office also agrees with broadcasters that the Supreme Court can rule against Aereo without calling into question the entire cloud storage regime.
"[A] decision rejecting respondent’s infringing business model and reversing the judgment below [the Second circuits' denial of an injunction against Aereo] need not call into question the legitimacy of innovative technologies that allow consumers to use the Internet to store, hear, and view their own lawfully acquired copies of copyrighted works.
"In Cablevision, the cable company already possessed the necessary licenses to transmit copyrighted television programs to its subscribers. The RS-DVR system simply allowed subscribers to engage in 'time shifting' by recording, for later viewing, programs they received through their authorized cable subscriptions," said the Justice attorneys. The court in Cablevision reasonably concluded that the copies so created were made by the subscribers rather than by the cable company itself."
As far as the Justice Department lawyers are concerned, Aereo's service is an illegal public performance of copyrighted material, not private remote access to legal content.
The lawyers said they were not weighing in on whether Aereo or other over-the-top providers could secure a blanket license, like cable, an issue it said was unsettled pending, among other things, the FCC’s decision on how to treat online video distributors.
Current Solicitor General Don Verrilli recused himself from the brief. While an attorney with the firm Jenner & Block, he represented film and TV studios in the Grokster case, which established that “companies building businesses based on the unauthorized distribution of copyrighted works can be liable for inducing infringement,” according to a Justice Department bio of Verrilli.
"NAB is pleased that the Solicitor General -- who represents the U.S. Government before the Supreme Court -- agrees with broadcasters that Aereo is violating copyright law. We look forward to oral arguments and a final decision in the case, and we're hopeful that Aereo will be declared a copyright infringer," said the National Association of Broadcasters in a statement.
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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.