Nets Ask Court to Ditch Aereo's Last-Ditch Effort
The broadcast networks have asked a New York district court to block Aereo from trying to reconstitute its service under the Sec. 111 blanket copyright license.
That came in a filing with the U.S. District Court for the Southern District of New York by asking that it now impose an injunction on Aereo effective nationwide. The court did not do so the first time around, saying it did not think Aereo was providing a public performance. The Second Circuit Court of Appeals agreed, but that decision was overturned by the Supreme Court in June.
Aereo's model was to deliver TV station signals and DVR functionality to subscribers online using remote mini-antennas and without negotiating payments to broadcasters for delivering that content. Aereo said it was simply providing remote access to free TV and home recordings. Broadcasters said it was providing a public performance without payment in violation of copyright laws.
After the Supreme Court ruled against Aereo, the company sought the blanket license from the Copyright Office, saying the court had essentially equated it with the cable operators who qualify for the license.
Not so fast, said broadcasters.
"[Aereo] claims the Supreme Court determined that Aereo is now entitled to a 'compulsory' license under Section 111 of the Copyright Act. But the Court held only that Aereo publicly performs Plaintiffs’ copyrighted works under the Transmit Clause, an intentionally 'broad' provision that explicitly reaches anyone who transmits a performance 'to the public' by means of 'any device or process," the broadcasters say. "Although the Court was clearly aware of Section 111, as the Justices raised it during oral argument, the Aereo III opinion notably does not say that Aereo is a cable system for purposes of Section 111 or that Aereo is entitled to the enormous benefits of the Section 111 compulsory license."
If that had been the case, they said, "any broadcast retransmission service whatsoever, including the proverbial Internet-savvy 'kid in the dorm room,' would qualify for the Section 111 license."
Aereo is also trying to limit an injunction by arguing that it should only apply to near-simultaneous transmissions, the broadcasters point out, rather than time-delayed access, which Aereo argues is similar to a cloud-storage function.
They say the Supreme Court "made clear that Aereo publicly performs Plaintiffs’ copyrighted works when it retransmits those works to subscribers over the Internet, regardless of any time delay that may occur," citing language from the Supremes' opinion to back it up.
"Aereo is an adjudicated infringer," the networks said. "It has been trampling on Plaintiffs’ copyrights for over two years and has collected hundreds of thousands of dollars in subscriber fees while doing so. Plaintiffs are entitled to an injunction protecting their rights, and in order to protect those rights the injunction must bar Aereo from publicly performing Plaintiffs’ copyrighted works by streaming, retransmitting or any other means."
Aereo has discontinued its service while awaiting decisions out of the courts and the Copyright Office. The latter did not reject its license claim, but indicated it did not think Aereo qualified, but would hold the application in abeyance in case the courts—or the FCC—saw it differently. Aereo investor IAC has already written down its investment, and IAC chairman Barry Diller has signaled the service is all but dead.
The FCC has an open proceeding to determine whether over-the-top providers are MVPDs, but has also tentatively concluded that without controlling the facilities to transport the content, online video services are not MVPDs subject to their various rights—like the compulsory license—or responsibilities—PEG channels, program access and carriage requirements, or retrans.
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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.
By Kent Gibbons