Ask Dr. Copyright

Ask Dr. CopyrightDear Doc:

Since you wrote about Aereo, that company with the millions of TV antennas that was going to free us from the tyranny of Comcast, Verizon, Time-Warner, Cox, and all of the other blood-sucking video vampires, and the fact that Aereo lost big-time in the Supreme Court, we have been waiting for the next chapter.  So what gives?

Walter White and Tony Soprano

Dear Walt and Tony:

Fear not! The Aereo saga continues, and it’s gotten even stranger since those six Honorable Justices of the Supreme Court shut down the service in June.

You may remember (and if not, you can read the Doc’s June 28th column) that Aereo argued that it was just a remote antenna and DVR, not a cable service, and so, it did not have to pay royalties to television broadcasters. That made sense to judges in New York, but in Washington, DC, not so much. The Supreme Court reasoned that technological differences make no difference.  If Aereo’s service looked like the kind of cable service that Congress wanted to restrict, then, by gum, it was legally the same (never mind those millions of tiny antennas, tuners, hard drives, and the fact that you can legally time and space shift broadcast television under theSony Betamax ruling by an earlier Supreme Court.)

As the Court said, “why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. … Why would a subscriber who wishes to watch a television show care much whether images and sounds are delivered to his screen via a large multisubscriber antenna or one small dedicated antenna, whether they arrive instantaneously or after a few seconds’ delay, or whether they are transmitted directly or after a personal copy is made?”

Okey-dokey, said Aereo…if that’s what the Court says, then we’ll just be a cable company, pay royalties to the broadcasters, and pass those fees on to our subscribers. After all, competition in the market is what the good ol’ USofA is all about, right? Now, you’d think that the TV guys would be pleased to have more money, and that would be the end of it, but no, here’s where the story gets even more bizarre.

Aereo’s Position: The Supremes said that we walk like a duck, and quack like a duck, so we are legally a duck. We now agree, so we are going to use the compulsory license provisions of the Copyright Act to allow us to retransmit over-the-air programs to our customers. We will, of course, pay for that right as the law requires. Done and done.

The TV Guys: No so fast, Aereo. You’re NOT a cable TV company, and you can’t use the law that the Supreme Court says you violated to stay in business by paying us. You have to stop. You can’t show our programs. Not in real time, and not even by time-shifting. We demand an injunction from the trial court. Now!

The District Court considered the issues carefully. Judge Allison Nathan then issued a 17 page order effectively shutting down Aereo. Why, you ask?

Well, to put it bluntly, it’s not good enough even if Aero agrees with the Supreme Court, and offers to pay.  Judge Nathan reasoned that “Aereo’s argument suffers from the fallacy that simply because an entity performs copyrighted works in a way similar to cable systems it must then be deemed a cable system for all other purposes of the Copyright Act.”   And, unfortunately for Aereo, an earlier decision of the Second Circuit Court of Appeals had already determined that Congress never intended that Internet transmissions of video should be called cable television for purposes of the Copyright Act. WPIX, Inc. v. ivi, Inc. (Perhaps the Supremes didn’t read that one).

So, Judge Nathan issued an order prohibiting Aereo from transmitting any TV program on its system while that program was being broadcast (leaving, for the moment, the question of whether Aereo’s DVR function could remain online.)

Aereo, like other innovators such as Uber, Lyft, and AirBnb, is faced with laws and judicial interpretations that look squarely backward, while their business models try to look to the future.  So there you have it (or rather, you don’t, and won’t anytime soon.) The Doc suggests that you call your cable company for service. That way, at least you’ll be home between November 1st and 15th between the hours of 6am and 9pm, and that will keep you out of trouble.

Have a question about some intellectual property dilemma? The attorneys at LW&H actually like to think about such things (even though it sometimes makes their heads hurt.) Give them a call.

Until next month (or not)… Don’t stop believin’.

The “Doc”

-Lawrence Husick, Esq.