Seeking Television Broadcasts Over the Internet? Court Sending Mixed Signals With the increasing prevalence of over-the-top technologies, will television broadcasts over the Internet become more pervasive? A Federal Court recently opened the door to broadcasting copyrighted material over the Internet. The court reached back to the decision in Sony v. Universal City Studios (1984) [1]. In Sony, the creators of television content were greatly concerned about home recording of television broadcasts with VHS and BETA devices. One recent case concerned a modern version of the VHS and BETA wars with Hollywood that occurred in the early 1980s. The copyright laws provide copyright owners a bundle of exclusive rights. One of the exclusive rights is the right to perform copyrighted works. [2] In WNET v. Aereo, Inc. (April 1, 2013) [3], television station WNET and others sought an injunction barring Aereo from retransmitting their television broadcasts over the Internet. The Federal Appellate Court upheld the District Court’s decision to deny a preliminary injunction. There were three technical details of Aereo’s system that the court emphasized in its finding that Aereo’s service was not distinguishable from a customer with a device in their home for recording television broadcasts: [4] (1) Aereo assigns each subscriber its own antenna while the subscriber is active, i.e. no two subscribers share the same antenna simultaneously; (Note: an element of Aereo’s network is a hub with an array of 2-inch diameter antennas for receipt of television broadcasts.) (2) The signal received by each antenna is used to create an individual copy of the program in the subscriber’s personal directory on servers remote from the subscriber. Even when multiple subscribers are watching or recording the same program, a separate copy of the program is created for each subscriber. (3) When a subscriber watches a program, she sees her individual copy. In August of 2012, the same court barred IVI, Inc. from retransmitting television broadcasts over the Internet. [5] Despite the fact that IVI was providing DVR like features (live broadcasts, stop, pause, fast-forward, and rewind), the court held that IVI was not providing a virtual VCR/DVR like Aereo. Instead, IVI simply retransmitted the television broadcasts over its network and the Internet. IVI argued that it was a cable company (CATV) and, therefore, eligible for the same compulsory license that CATV companies receive. A compulsory license provides CATV companies access to content at a price defined by law and without the consent of the television broadcaster or content providers. The IVI court was influenced by the absence of U.S. Congressional action regarding the transmission of broadcast programming over the Internet. Congress addressed CATV systems in the Copyright Act of 1976, when Congress created the compulsory license. Congress added microwave to the compulsory license law in 1994. In 1991, Congress created a separate section of the law for retransmission of broadcast programming via satellite transmissions. Congress made compulsory licenses also applicable to satellite transmission of broadcast programming. In IVI, the court held that if Congress intended compulsory licensing to apply to transmissions of broadcast programming over the Internet, by this time Congress would have either added it, like it did for microwave transmissions, or created a new section of law, like it did for satellite transmissions. The court was also influenced by past rulings of the U.S. Copyright Office. The Copyright Office clearly holds that Internet retransmission services are not CATV services. Furthermore, the Copyright Office rulings consistently state that CATV compulsory licenses apply only to head-ends [6] and contiguous communities. The Internet’s inherent non-localized aspects make it ineligible for a compulsory license. Impacts: Content providers should watch these court findings closely. If the Aero network model gains a foothold, a significant amount of the content providers’ exclusive performance rights may be eroded by service providers that follow the same network model. Cable television and other telecom and entertainment service providers should make note of the vast difference between public policy-makers purported objectives and the objectives they actually achieve. The two cases cited above illustrate the technology specific nature of laws and regulations. The Federal Communications Commission (FCC) is rapidly moving towards regulations that favor certain technologies, e.g. IP, over other technologies. The importance of keeping a company’s lobbying activities in sync with their engineering and operational departments is increasingly important. Please contact our office if you have any comments or questions about this post. P.O. Box 720849 Oklahoma City, OK 73172 boaldinlaw Ph. 405.305.1046 Fax 866.914.7530 solutions@boaldinlaw Business Law – Copyrights – Trademarks – Dispute Resolution [1] Sony Corp. of Am., et al. v. Universal City Studios, Inc., et al., 464 U.S. 417 (1984). [2] 17 U.S.C. § 106(4). [3] WNET, et al. v. Aereo, Inc., U.S. Ct. App. 2d Cir., April 1, 2013, Docket Nos. 12-2786-cv and 12-2807-cv. [4] This finding is based on a Second Circuit 2008 holding. Cartoon Network LP, LLLP v. CSC Holding, Inc., 536 F.3d 121 (2d Cir. 2008). (“Who is capable of receiving” refers not to receiving the copyrighted work but, instead, the transmission of the performance.) See the definition of “perform” and “publicly” at 17 U.S.C. § 101. [5] WPIX, et al. v. IVI, INc. and Todd Weaver, 691 F.3d 275 (2d Cir. 2012). [6] A “head-end” is a hub where a cable company receives many broadcasts and satellite transmissions and then retransmits the programming over its local cable system.
Posted on: Mon, 05 Aug 2013 22:03:06 +0000
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