Aereo Fights Copyright Infringement Allegations
A service bringing broadcast TV to devices continues to fight allegations it breaks copyright laws and that its legal arguments present nothing more than what plaintiffs call a “gimmick.” Aereo, launching Wednesday, will hold antennas the size of a dime in centers which the company calls “antenna farms” and rent those antennas to customers. Broadcasters who sued Aereo said it allegedly obtains programming through these antennas, transforms it to be accessible through the Internet and transmits it to customers’ devices. For $12 a month, customers in New York can access the programming and record it for later using a “cloud DVR.” Aereo is backed by IAC/Interactive CEO Barry Diller, who used to run Paramount and Fox.
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Aereo is retransmitting providers’ programming and is therefore breaking copyright law which prohibits the unauthorized commercial performance of copyrighted materials, two groups of broadcasters alleged when they filed two separate federal lawsuits (http://xrl.us/bmx2h3) against Aereo in the U.S. District Court in the Southern District of New York on March 1. “This service is based on the illegal use of our content,” said an ABC spokeswoman.
"This case is not about stifling new video distribution technologies, but about stopping a company from violating our copyrights and redistributing our television programming without permission or compensation,” said a joint statement from the filers of one case, including Fox Television Stations, Univision and Public Broadcasting Service. The NAB supported the legal action against Aereo, it said: “Copyright and TV signal protections promote a robust local broadcasting system that serves tens of millions of Americans every day with high quality news, entertainment, sports and emergency weather information. A plaintiffs’ win in this case will ensure the continued availability of this programming to the viewing public."
Content providers “invest billions of dollars to produce popular television content, and are constantly introducing new ways for viewers to enjoy their shows on multiple devices, when and where they want,” said Vice President Henry Hoberman of MPAA, which didn’t file suit against Aereo. “No one relishes litigation, but sometimes it is necessary when companies fail to respect the law and the rights of others."
Aereo filed a counterclaim Monday against nine broadcasting companies including ABC. It argued that customers are not paying Aereo for the programming but are paying to use the antennas to access broadcast TV. This exercises fair-use privileges the same as if customers were to access the programming through antennas installed in their own homes, Aereo said.
Aereo “rests on three very well established legal principles: consumers’ right to access broadcast television, their right to record unique copies of broadcasts for personal use and their right to use remotely located equipment to make their private copies,” said a spokesman. “We firmly believe that Aereo’s technology is lawful. We are confident in the legal process, and we look forward to a prompt resolution of these meritless lawsuits."
"Consumers are legally entitled to access broadcast television via an antenna and they are entitled to record television content for their personal use,” the company said. But this argument may not hold up because Aereo would only allocate an antenna to a customer on a temporary, as-needed basis, not give them permanently assigned antennas, said George Washington University law professor Roger Schechter. The amount of antennas is merely a “gimmick,” and it doesn’t give Aereo the right to retransmit copyrighted programming, said a joint written statement from broadcaster plaintiffs.
Aereo uses the term antenna as “more of a legal convenience than a descriptively accurate technological way of describing this item,” Schechter speculated. Another problem is that Aereo is adding a third party to the process, he said. Customers can access programming for noncommercial services under the current copyright statute. But when Aereo enters the picture as a third party gaining commercial gain, that breaks copyright law, and Aereo either needs to reach an agreement with providers or pay the same fees that broadcasters must pay, Schechter said. The regular agreements may not fit Aereo’s situation though, he said: Aereo might not meet the statutory definition of a cable network, so it might not be able to get the licenses involved.
The next debate will not be whether services like Aereo are legal, but rather who will control them, Schechter said. The TV industry is quickly losing viewers and ad revenue because consumers don’t want to watch shows at fixed times and places, he said: “We are becoming an on-demand society. We don’t want to watch our favorite show at 8:30 on Tuesday, we want to watch it when we want to watch it.” Broadcasters need to figure out how to make profits in this new area, and that means harnessing technologies like Aereo for their own use, he said.