Published by LawTechie - July 24, 2014 - LawTechie

Earlier this month startup digital streamer Aereo suffered a huge setback when the Supreme Court ruled that its streaming model violated broadcasters’ exclusive right to publicly perform their copyrighted works. As I complained noted in my post on the decision, the Supreme Court overruled 6 years of 2nd Circuit jurisprudence seemingly because it just did not like what Aereo was doing.

The Supreme Court justified its decision by analogizing Aereo to a cable company (in contrast to the DVR-like model that Aereo attempted to operate).

Per my previous post:

Rather than analyze how, if at all, Aereo is different from DVR, the Court begins it’s analysis by pointing out “Aereo’s overwhelming likeness to the cable companies targeted by the 1976 [Copyright Act] amendments.” The Court then goes on to analyze the “intent” of the 1976 amendments to conclude that Aereo’s technical model, which according to Cartoon Network should be legal, “[does] not render Aereo’s commercial objective any different from that of cable companies. Nor [does it] significantly alter the viewing experience of Aereo’s subscribers.”

The 1976 amendments created a compulsory licensing model which allowed cable companies to license the right to re-transmit broadcasting after depositing a statute-prescribed royalty payment with the Copyright Office.

So earlier this month Aereo went ahead and deposited a royalty with the Copyright Office. Easy fix? Nope…

Jacqueline Charlesworth, general counsel and associate register of copyrights, responded to Aereo’s compulsory license request with a letter stating that, “Internet retransmissions of broadcast television fall outside the scope of the Section 111 license.”

Ironically enough, the Copyright Office cited a 2nd Circuit decision (WPIX v. ivi, 691 F.3d 275 [2d Cir. 2012]) to support its denial.

Considering the fact that the Copyright Office had submitted an amicus brief in favor of the broadcasters, its prejudicial opinion on this point was more or less expected. So too is Aereo’s inevitable lawsuit against the Copyright Office where, crazily enough, Aereo’s lawyers, who had spent the better part of a year arguing that Aereo is not a cable provider, will now be arguing the exact opposite.

(Oh, and ever-tardy-to-the-party FilmOn X also applied for a compulsory license last week.)

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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