Gov Sides with Networks - Fordham Intellectual Property, Media & Entertainment Law Journal
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Gov Sides with Networks

Gov Sides with Networks

Oral arguments for ABC v. Aereo are scheduled for the Supreme Court on April 22. However, until then, the Court has been receiving an influx of amicus briefs, including one from the U.S. copyright office and Department of Justice that sides with the broadcasters. The government claims that Aereo has infringed on broadcast copyright and encourages the Court to reverse the Second Circuit’s decision in favor of the service. Such filings on behalf of the White House occur when the government wants to express its interests in cases it is not party to.

What Aereo provides is a service that streams free signals of television stations to its customers’ Internet-connected devices through tiny antennas for a fee. For merely $8, customers can watch and record programming through the internet without wires or cableboxes. The broadcasters allege that this is “unauthorized exploitation” of others’ copyrighted works. This is problematic for the broadcasters who invest billions into the creation and distribution of television shows and claim that Aereo’s ability to avoid fees for use of this content could threaten the future of their business and the industry.

The lower courts disagree on the legitimacy of Aereo’s services, and just last summer, the Second Circuit ruled in favor of the start-up. On the other hand, Utah federal judge Dale Kimball issued an injunction in favor of the broadcasters, shutting down Aereo’s operations in Salt Lake City and Denver. Since March 2012 Aereo has been able to counter requested injunctions in New York and Boston.

In the amicus brief, the Solicitor General defines Aereo’s service as a public performance within the meaning of the Copyright Act. The government states that Aereo “operates an integrated system – i.e. a ‘device or process’ – whose functioning depends on its customers’ shared use of common facilities.” Moreover, the use of unique copies and individual transmissions does not change the fact that the company retransmits broadcast content “to the public.”

On the other hand, Aereo argues that its services are private because each subscriber is assigned a single unique copy, which only that individual subscriber can receive a transmission from. It claims that it should not have to pay to retransmit the programming because it does not copy the material outright, rather the subscribers copy the material on their own. The company also warns against a reversal of the Second Court’s decision as a threat to the emerging industry of cloud-based media storage. On that point, the Solicitor General states that while Aereo’s system clearly infringes by transmitting “the same underlying performances to numerous subscribers,” this line of reasoning does not extend to other cloud-based services. 

Joining the U.S. government are several other parties filing their amicus briefs with the Supreme Court, including Cablevision, who contends that Aereo violates copyright law by retransmitting broadcast content without a license. Cablevision compares Aereo’s service to that of a cable system, and therefore, it must pay for the right to provide over-the-air signal transmission. A group of international rights holders also side with the broadcasters, claiming that the Second Circuit’s decision violates international treaties.

Ariel Choi

Ariel Choi is a second year student at Fordham Law and an IPLJ staff member. She studied English at the University of Pennsylvania, where she first became interested in copyright and other intellectual property issues.