Legal Memo by Michael Berg

ABC v. Aereo: What Happened, What's Next

Here's a roundup of the activity in March in the Supreme Court's ABC v. Aereo copyright infringement case with filings by both sides. There were also supporting arguments filed for both broadcasters and Aereo. And finally, there's a timetable for upcoming activity.

In March in the Supreme Court’s ABC v. Aereo Inc. case, the United States and 16 others filed friend of the court briefs supporting the broadcaster petitioners, and respondent Aereo Inc. filed its brief in answer to the earlier-filed broadcasters’ brief. This Legal Memo focuses mainly on those two events, and also notes other developments and next steps.

The full name of the case is American Broadcasting Companies Inc., et al. v. Aereo Inc. formerly known as Bamboom Labs Inc. (abbreviated here as ABC). Background is available in previous TVNewsCheck Legal Memos: Lots of Action Soon in SC’s ‘Aereo’ Case, ABC-Aereo Set For Supreme Court Showdown, The Two Court Rulings Rocking Aereo, FilmOn and The 411 On Aereo's Many Legal Challenges.

In chronological order, here’s what happened in March: 

March 3: Seventeen friend of the court amicus briefs were filed, including one by the United States, in support of the broadcaster petitioners’ position that Aereo’s provision of broadcast signals and programs to paying subscribers, without broadcaster consent or compensation, violates U.S. copyright law. On the same date the SC denied FilmOn’s motion for leave to intervene and become a party in the case.

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March 12: In addition to its amicus brief on behalf of the United States, the Solicitor General filed a motion for permission to participate in the oral argument before the SC on April 22. That motion is pending as of this writing.

March 26: Respondent Aereo filed a brief arguing why the SC should rule for Aereo.

Also, on March 7 in the separate case Community Television of Utah v. Aereo Inc., the 10th Circuit Court of Appeals denied Aereo’s motion for a stay of the preliminary injunction against its operating in the Tenth Circuit states (Utah, Colorado, Kansas, New Mexico, Oklahoma and Wyoming) pending its appeal. The appeals court held that Aereo failed to show that it is likely to succeed on the merits of the Utah case, and refused to overturn the District Court’s injunction.

On April 2, amicus briefs by supporters of Aereo were due. (Their content will be covered in a future column.)

Briefs Supporting The Broadcasters Against Aereo

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In addition to the amicus brief filed on behalf of the United States, pro-broadcaster briefs were also filed by The Media Institute; Professors Peter S. Menell and David Nimmer; The American Society of Composers, Authors and Publishers (ASCAP); American Intellectual Property Law Association; The National Association of Broadcasters (NAB); Viacom Inc.; Washington Legal Foundation; National Football League and Major League Baseball; Cablevision Systems Corp.; Copyright Alliance and Various professors; Ralph Oman, former Register of Copyrights of the United States; New York Intellectual Property Law Association; Screen Actors Guild-American Federation of Television and Radio Artists (SAG); International Center for Law & Economics; International Federation of the Phonographic Industry; and Time Warner Inc. and Warner Bros Entertainment Inc.

Here are capsule summaries of the Solicitor General’s brief, and a few of the other 16, to highlight the range of arguments made:

Solicitor General’s Brief Supporting ABC 

The U.S. Solicitor General represents the United States before the SC. Current SC Justice Elena Kagan was the SG before being named to the SC. The SG is not obligated to weigh in on every SC case, and generally takes sides when the SG believes that case results will significantly impact the interests of the United States. Due to the nature and prestige of the Office of SG and its selective approach to involvement in SC cases, the SG’s taking sides is usually significant.

The Solicitor General argued:

Aereo’s unauthorized Internet retransmissions infringe broadcasters’ exclusive public performance rights under the Copyright Act.

The Copyright Act guarantees copyright owners the exclusive right, “in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly” (emphasis added). The term “performance” includes both the allegedly infringing Aereo transmissions, and any underlying performances, such as the network broadcasts. Because Aereo’s system transmits the same underlying performance to numerous subscribers, it “performs” petitioners’ copyrighted works publicly and infringes petitioners’ public performance right.

Even if the SC construes the term “performance” narrowly to apply only to the transmission itself, the performance is still public because those transmissions are still available to any member of the public who is willing to pay Aereo’s monthly subscription fee.

 “... a decision rejecting respondent’s infringing business model and reversing the [2nd Circuit’s] judgment need not call into question the legitimacy of innovative technologies that allow consumers to use the Internet to store, hear, and view their own lawfully acquired copies of copyrighted works.”

The SG distinguished other technologies, such as cloud-based services, from Aereo. In the cloud and other non-Aereo technologies, the underlying content has already been lawfully acquired, and a consumer’s playback of her own lawfully-acquired copy of a copyrighted work to herself will ordinarily be a non-infringing private performance. Aereo, on the other hand, equips its subscribers to access copyrighted content in the first place (without any prior lawful acquisition by the consumer), providing the same service that cable companies have traditionally provided without paying the same license fees.


Comments (8) -

RustbeltAlumnus2 Nickname posted over 2 years ago
Everyone should go read the Betamax decision. Private use of a signal applies, because the Aereo subscriber owns an individual antenna, not at all like cable TV.
BemusedReader Nickname posted over 2 years ago
Minor difference Rusty: Sony didn't charge Betamax owners a monthly subscription fee. Aereo put the lie to its whole case by agreeing to act as a Bloomberg TV distributor. Yes, that would indeed make Aereo a... "distributor"
TVMN Nickname posted over 2 years ago
The Aereo subscriber DOES NOT own the antenna. It is leased. Everything in their receiver chain is leased, just like cable. Also there is no proof that one user gets assigned one antenna. And "Bemused" is correct. The moment they added Bloomberg TV to their available channels, they became an MVPD, which is what cable is.
Insider Nickname posted over 2 years ago
Not by the definition of the law defining a MVPD. See article link below.
newsbot Nickname posted over 2 years ago
And Sony didn't provide an antenna array at a central headend, either.
Insider Nickname posted over 2 years ago
As I have said for months, Antennas are a red herring. if you read the framing of the case that SCOTUS is deciding on, SCOTUS is not looking at antenna and if they work or not. Again, this is only a red herring for those who have not taken the time to educate themselves as to what SCOTUS is actually ruling on. Anyone who continues to bring up the Antenna is only showing their ignorance in this case.
Insider Nickname posted over 2 years ago
You would be wise to to read the Aereo response as well as the 1976 Copyright Law. Specifically, The 1976 Copyright Act actually states that cable operators should NOT pay copyright fees on content distributed within their local market. Furthermore, in the 1992 Cable Act, retransmission consent applies to cable systems and is absolutely distinct from copyright law. Props to BTIG Richard Greenfield for reading the entire Aereo response and pointing out this is perhaps a game changer. Read more:
Insider Nickname posted over 2 years ago
Read more:
Marketshare Blog Playout Blog




Overnights, adults 18-49 for September 22, 2016
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Source: Nielsen


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