Aereo Says DVR Use Would Be Barred by Broadcasters’ Arguments
The 2nd U.S. Circuit Court of Appeals would put every DVR user at risk of copyright infringement liability if it overturns a district court’s decision not to block Aereo from operating while litigation over its remote DVR service continues, Aereo said in a brief filed with the appeals court Friday. Broadcasters appealed a decision by Judge Alison Nathan of the U.S. District Court in Manhattan (CD July 13 p3) that rejected their arguments over why Aereo’s service, which lets subscribers watch and record broadcast TV programming over the Internet, should be stopped.
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The 2nd Circuit’s decision in Cartoon Networks v. CSC Holdings, a decision that allowed Cablevision’s remote-storage DVR service, also applies to Aereo, the company’s brief said. “Erecting the fence around Cablevision that Appellants advocate is a thinly veiled attempt to persuade this court to overrule not only the Cablevision precedent” but also standing precedent in its 2010 United States v. Am. Soc'y of Composers, Authors & Publishers, known as the ASCAP opinion, and In Re Application of Cellco P’ship, or the Cellco opinion regarding the difference between public and private performances of copyrighted works under the Copyright Act, it said.
Private performances are expressly allowed under copyright law and consumers have a right to access local over-the-air broadcasts, the brief said. “There is no basis in law to confine that use to a home-based antenna or equipment,” it said. “Copyright laws were never intended to be used to confine consumers to outdated technology."
"Essentially, Appellants are arguing that Aereo carefully designed its systems to comply with Cablevision” in “some clever attempt to get around copyright law,” the Aereo brief said. “There is considerable irony in Appellants’ suggestion that Aereo is somehow culpable because it carefully designed its system to comply with copyright law.”
Ralph Oman, who was U.S. register of copyrights during the drafting of the Copyright Act, and is now a professor at George Washington University, took a very different view in an amicus brief that the court accepted for filing Friday. Oman had initially submitted the brief with a defective format and as a result it had been stricken from the record until Friday, court filings show. “It is inconsistent with sound principles of copyright law, public policy and common sense to find that an unauthorized television retransmission service like Aereo is not engaged in a public performance,” he wrote.
The lower court extended the Cablevision opinion precedent “well beyond its limited facts” and essentially created an exception to copyright law Congress never intended to grant, Oman said. “Regardless of one’s views as to whether Cablevision is analytically sound, it cannot be applied to Aereo’s retransmission business,” he said. “To permit Aereo to continue to offer that retransmission service is outside any reasonable interpretation of what this Court could have intended when it decided Cablevision and is contrary to Congress’ intent.”