Studios Try to Quash Aereo Streaming TV Service
Aereo enables live-TV viewing via iPad and other streaming devices.
The service simply takes free over-the-air TV channels accessible via an antenna and puts them on the Web.
For $12 per month, customers can watch the major networks and a few other channels, and even pause and record their shows via Aereo’s DVR capabilities.
Consumers are quite happy with the service – especially in crowded spaces like NYC, where cable channels might be blocked by big buildings – but broadcasters are less enthusiastic.
In July of this year, broadcasters asked for a temporary injunction of the Aereo service as they ready a lawsuit against the company, which is backed by Barry Diller.
They claim Aereo violates copyright law because it “misappropriate[s] copyrighted material and retransmit[s] it without compensation.”
The injunction was denied, but the plaintiffs aren’t relenting. So three organizations who champion digital rights and innovation are preparing for the legal battle, filing an amicus brief on behalf of Aereo in the U.S. Court of Appeals for the Second Circuit.
The Consumer Electronics Association, Electronic Frontier Foundation and Public Knowledge are urging the courts to side with Aereo and “the countless other disruptive innovators who will be affected by this decision,” writes CEA CEO Gary Shapiro.
The groups argue that the case “is of profound importance to the public.”
Shapiro likens it to the landmark 1984 Betamax case, which paved the way for modern-day DVRs.
Aereo employs a network of antennas to capture TV signals and retransmit them over the Internet to subscribers. Unlike cable and satellite companies, Aereo does not pay fees to stations for the right to retransmit these free over-the-air signals.
If the plaintiffs were to prevail, “the carefully crafted balance embodied in the Copyright Act could be upended, to the detriment of public interest,” say the the three organizations that filed the amicus brief.
Here are some of the key arguments in the brief:
1. Per Section 106 of the Copyright Act, Copyright holders are only entitled to compensation for performances and transmissions that are “to the public,” not to private individuals. (Cartoon Network LP v. CSC Holdings: Cablevision’s remote DVR makes private performances; remote DVRs are outside copyright holders’ control.)
2. Aereo’s system, indeed, makes lawful private performances. Per amici EFF, et al, “They are separate transmissions from a private antenna to a personal copy, and then to a home user. These transmissions cannot be ‘aggregated’ with other private transmissions to create liability.”
3. Plaintiffs are overly broad in suggesting that any broadcast is a “public performance” if it is not distributed through a home antenna, cable box or satellite dish. To wit: Slingbox, EyeTV, Ceton with Windows Media Center, and other networked TV tuners are all deemed legal. “Aereo’s system differs from the examples above in only one respect—the antenna and certain transmission equipment (the functional equivalent of the wire between antenna and TV set) are physically located at Aereo’s facility. ... Each user views a separate transmission from a separate antenna at Aereo’s facility; the transmissions are never shared among customers.”
4. Plaintiffs argue that they make a “public performance” when they air a program, so any retransmission is a public performance. Aereo, then, operates as part of a “chain of transmission” from the broadcaster to the viewer. Hogwash, say the Aereo advocates in their brief: “Whether or not such uses (such as reproductions or transmissions) are infringing does not depend on the manner in which they were received. In this case, the transmissions from Aereo’s facilities to its users are private and thus non-infringing. ... Any ‘chain of transmission’ is already broken whenever a new party makes a new transmission, because a broadcaster’s public performance terminates when an antenna receives its signal.”
5. “Preliminary injunctions in copyright cases should discourage infringement but not innovation.” Courts need to consider the benefits of disruptive innovation such as Aereo’s.
6. The doomsday predictions of virtually every single innovation in audio and video are laughable in hindsight. In 1982, the MPAA compared the VCR to a serial killer before the organization lost its famous case against Sony Betamax. With each new innovation, the death knell for artists and content producers rang, but the industry is alive and thriving. Jump to page 22 of the amicus brief for an interesting read.
7. Broadcasters exploit the public radio spectrum ... for free. “In exchange for this, broadcasters are expected to serve the public interest. The broadcasters in this case seek to avoid, even frustrate, that responsibility,” EFF, et al, explain.
8. Bottom line: “By making broadcast programming more accessible, and by creating more choices for private viewing technologies, Aereo improves and does not disrupt the free television industry.”
Plaintiffs in the case, WNET v. Aereo, are WNET, Thirteen, Fox Television Stations, Twentieth Century Fox Film, WPIX, Univision and the Public Broadcasting Service.