Dear Doc:
How ya’ doin? I heard you wuz under da weather! Anyway, if you are feelin’ better, can I get a read on a new TV app called “Locast”?
Signed,Vidiot
Dear Vidiot:
Thanks…the “Doc” is feeling much better and may soon be back in the office. In the meanwhile, the Doc will try to answer your question from his laptop, while sitting in his easy chair.
Back in 2013, the Doc wrote about a new service called Aereo that offered to provide local television over the Internet by installing thousands of tiny antennas on the top of a building, and leasing you your own antenna so that you could watch free television on your computer, tablet or smart phone, rather than on a television equipped with a digital antenna. Predictably, both television networks and cable companies were not amused. When giant media companies are not amused, they bring law suits, and this one went all the way to the Supreme Court, which unsurprisingly sided with the giant media companies, ruling that even though you have a right to receive broadcast television programming for free, Aereo was not allowed to receive them for you, and send them to you over the Internet. In 2014, Aereo went out of business, costing its investors about $100 million.
Fast forward to 2018. A new nonprofit company called Locast has been launched by David Goodfriend, a lawyer who worked at the Federal Communications Commission during the Clinton Administration and who now practices and teaches law. In the past year, Locast has installed antennas in New York, Houston, Chicago, Boston, Philadelphia, Dallas, Denver, and Washington, D.C. The company says that over 60,000 subscribers use its app to watch live broadcast television, and that it plans to expand to over 50 cities. So far, Locast has not been sued by anyone!
According to Goodfriend, he noticed an imbalance in the media world, and wanted to insure that television that is supposed to be free over the airwaves could be viewed by anyone in each city where he operates. So, how can he do this without running into the Aero problem? It turns out that the Copyright Law (17 USC § 101 et seq.) has an exception for nonprofit organizations. 17 U.S.C. §111(a)(5) permits companies like Locast to operate a secondary transmission system:
a nonprofit organization, without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service.
As a nonprofit organization, Locast asks (but does not require) that viewers contribute $5 per month to support the service. If you’re really interested in the gory details of the legal justification, Goodfriend has a long “white paper” just for you!
Locast has some allies in its fight against big media, namely, other big media including satellite television services. These services hate the fact that they have to pay the networks to carry local channels. Even a large New York cable operator became an ally when a dispute with the networks over the blackout of local sports programs prompted their customer support folks to tell disappointed viewers to download Locast!
Where will this all end? Will Locast go the way of Aereo, sued into oblivion by big media? The Doc has no idea, but he admires David Goodfriend, who has found a way to poke giant corporations in the eye, by reminding us of the legal bargain that gives broadcast television free use of the airwaves in return for offering it to us for free. The Doc is still bitter about being forced to change from our old analog channels to digital ones. Digital channels don’t reach out as far as the analog ones did and can’t be fixed by putting aluminum foil on the rabbit ears. But then again the Doc still mourns the passing of manual transmissions in most cars and the fact that computer science grads can’t understand 6502 assembler code.
Have an intellectual property issue that’s been on your mind? Come unburden yourself to one of the attorneys at LW&H. They’ll put your mind at ease (or not, since judges are not very reliable when it comes to understanding technology), and help find the correct solution that meets your business needs.
Until next month,
The “Doc”
— Lawrence A. Husick, Esq.