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.
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TVNewsCheck,

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.

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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. www.btigresearch.com/2014/03/31/broadcasters-should-be-very-concerned-could-be-time-to-prepare-for-a-legal-aereo/#ixzz2xx1XQKbq Read more: http://www.btigresearch.com/2014/03/31/broadcasters-should-be-very-concerned-could-be-time-to-prepare-for-a-legal-aereo/#ixzz2xx0lAu83http://www.btigresearch.com/2014/03/31/broadcasters-should-be-very-concerned-could-be-time-to-prepare-for-a-legal-aereo/
Insider Nickname posted over 2 years ago
Read more: http://www.btigresearch.com/2014/03/31/broadcasters-should-be-very-concerned-could-be-time-to-prepare-for-a-legal-aereo/#ixzz2xx1XQKbq
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Ratings

Overnights, adults 18-49 for September 22, 2016
  • 1.
    4.0/14
  • 2.
    1.7/6
  • 3.
    1.3/5
  • 4.
    0.9/3
  • 5.
    0.6/2
  • 6.
    0.3/1
Source: Nielsen

Reviews

  • Rob Owen

    Easily fall’s best broadcast network comedy pilot, NBC’s The Good Place offers a clever high-concept premise that’s complemented with intelligent, sometimes absurdist humor. Created by Michael Schur, co-creator of NBC’s Parks and Recreation, The Good Place is a highly serialized series that’s essentially set in heaven and stars Kristen Bell and Ted Danson. NBC made five episodes of The Good Place available for review, and the show not only holds up, but also it improves, deepening characters that initially feel one-note and frequently leaving viewers guessing with cliffhanger endings to many of the episodes. The combination of snappy dialogue and winning but flawed characters makes The Good Place a great bet for fans of smart TV comedy.

  • Maureen Ryan

    Pitch has swagger, for good reason. It gets the big things right; the Fox drama about the first female baseball player in the Major Leagues is one of the year’s most assured and exciting debuts. But part of what impresses about the pilot is also the way it confidently strings together so many small but telling details. Ginny (Kylie Bunbury) is the first woman to be called up from the minors to the big leagues, and no show since Friday Night Lights has done a better job of portraying the internal and external pressures that weigh heavily on young athletes asked to do much more than merely succeed on the field. Pitch will likely do a good job of getting viewers to root for it. The hope is that the show won’t be an impressive, short-lived curiosity, but rather a long-term phenomenon.

  • Kevin Fallon

    In a fall TV season that’s already making a splash for championing diverse, distinctive voices in an array of projects that they created, wrote, and starred in, Better Things on FX stands out. The show is created by, written by, and starsPamela Adlon. She plays Sam Fox, the single mother of three daughters modeled after her own reality-show-ready experience raising three girls in Los Angeles following a divorce. Sam is also, like Adlon, a working actress — on shows both raunchy, a la Californication, and animated for children, like her role on Recess. It’s a refreshingly blunt take on single motherhood without sacrificing the warmth of parental love, portraying the dance between selfishness and selflessness that’s at the heart of being a parent — especially one weathering the hormonal fireworks of a household of four women at different ages.

  • David Wiegand

    The fall TV season doesn’t count as much as it used to — we already know that. But no matter how many retreads the broadcast networks throw at viewers in the next few months, this fall will be memorable because of the premiere of Atlanta on Tuesday, Sept. 6, on FX. The half-hour comedy created by and starring Donald Glover (Community), simply and brilliantly recalibrates our expectations of what a TV comedy is and how black lives are portrayed on the medium.

  • Louisa Ada Seltzer

    The second reboot of the 1980s John Candy movie Uncle Buck, bumped by ABC from midseason, has the same tired jokes you'll find on any second-rate sitcom. Too bad, because Mike Epps is appealing and ABC would be wise to keep him around for future shows, but there’s just not enough to this show to suggest it will last past summer. It also airs against NBC’s America’s Got Talent, summer’s No. 1 program on broadcast, which may make it even harder to find an audience.

  • Neil Genzlinger

    Bryan Cranston brings his Tony Award-winning interpretation of President Lyndon B. Johnson to television in an adaptation of the Robert Schenkkan play All the Way, and it’s still quite a sight to behold, just as it was on Broadway in 2014. Nothing beats witnessing this kind of larger-than-life portrayal onstage, of course. But the television version, presented by HBO, offers plenty of rewards, allowing Cranston to work the close-ups and liberating him from the confines of a theater set. Cranston’s performance is a gem — in his hands, this accidental president comes across as an amazing bundle of contradictions, someone who seems at once too vulgar for the job and just right for it.

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