Online Video Streaming Service Says It’s Still on Track Despite Lawsuits
Two lawsuits targeting the online-video startup Aereo are meritless, Aereo said Thursday. Aereo, which is planning to start offering its services in New York City March 14, was named in two separate copyright suits brought by broadcasters and media networks. Aereo has said it plans to charge $12 a month for a live streaming and DVR service. Under Aereo’s model, each subscriber will rent his or her own antenna and DVR at Aereo’s facilities, and stream programming directly from that device to his or her own TV set, tablet or mobile device.
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The media companies said Aereo’s service, which has been available to a limited number of beta subscribers, violates copyright law and they sought an injunction requiring the company “cease any and all Internet retransmissions of Plaintiff’s programming” in addition to statutory damages under the Copyright Act.
"Aereo provides technology that enables consumers to use their cloud DVR and their remote antenna to record and watch the broadcast television signal to which they are entitled anywhere they are,” the company said on its blog. “Aereo very much looks forward to its upcoming launch as well as the prompt resolution of these cases."
Even though Aereo claims each subscriber gets his or her own antenna, “that does not make the resulting retransmission private” under copyright law, Disney, CBS, and NBCUniversal said in their suit against Aereo. “The use of any device to process or to retransmit a performance or display a work embodied in a broadcast signal to members of the public is defined in the Copyright Act as performing a work ‘publicly,'” it said.
Aereo will probably argue the opposite, said John Bergmayer, a senior staff attorney at Public Knowledge. “Because of the way they've architected their system, they're not making a public performance and they don’t infringe copyright,” he said.
Online video streaming companies fighting broadcaster lawsuits in the federal courts don’t have a great track record in the Southern District of New York, where these two new suits were filed. Ivi TV and FilmOn both met with unfavorable results there requiring each company to halt their streaming of U.S. TV station signals (WID April 25 p5). Those cases were both handled by Judge Naomi Buchwald. The networks’ case against Aereo has been assigned Judge Alison Nathan.
"When you have close calls” such as in these copyright cases, “who the judge is matters,” said Bergmayer. But judges in the same circuit typically follow each other’s precedents, he said. Still, Aereo will present a different legal strategy than Ivi and FilmOn, he said. “This is a different firm, doing something different and they're going to have a different legal defense."
An NAB spokesman said the trade association supports the lawsuits. “Copyright and TV signal protections promote a robust local broadcasting system,” he said. “A plaintiff’s win in this case will ensure the continued availability” of popular broadcast programming to “the viewing public,” he said.