Aereo Seeks Compulsory Copyright License, But Seen Lacking Clear Survival Path

Aereo’s request that a federal court issue it a compulsory copyright license under 1976 Copyright Act Section 111 isn’t a clear path to survival for the streaming TV service, industry and public interest attorneys told us Thursday.

The Supreme Court ruling that declared Aereo should be treated as a cable system when it retransmits content because it resembles one (CED June 26 p1) also means Aereo should be granted the same type of copyright licenses as cable systems, Aereo said in a joint status letter with broadcasters (http://bit.ly/1sDoJY3) to U.S. District Judge Alison Nathan in New York. That also means an injunction that broadcasters are seeking against Aereo’s business shouldn’t be granted, Aereo said in Wednesday’s filing. If Aereo is a cable system, “the transmissions Plaintiffs have sought to enjoin do not infringe Plaintiffs’ rights,” Aereo said. The question of whether it should be granted a compulsory license is “inextricably intertwined” with the question of the injunction, said the company.

Avoiding the injunction may be the real goal of pursuing the license, said Fletcher Heald copyright attorney Kevin Goldberg, who has no connection to the Aereo case. Previous court rulings against ivi -- another streaming TV service that pursued and was denied a compulsory license -- make Aereo’s getting a license seem unlikely, Goldberg said. Supreme Court Justice Stephen Breyer’s opinion in Aereo said systems that resemble cable should be treated like cable, making the issue less clear, Goldberg said. “There’s no clear answer; the question is whether Judge Nathan lets Aereo continue operating while we figure it out, or not,” Goldberg said.

The Manhattan-based court should decide the issues of the license and injunction “on an immediate basis or Aereo’s survival as a company will be in jeopardy,” said Aereo’s filing. Though it asked the court not to grant the injunction, Aereo suspended its own service after the Supreme Court ruling. “As a result of this good-faith effort, however, Aereo is taking in no new revenue, and continuing to incur enormous costs,” Aereo said.

The court should issue an injunction against Aereo before taking up any other matters, broadcasters said in their portion of the joint letter. “That is the most important next step,” said the broadcaster plaintiffs. “Aereo has been violating Plaintiffs’ exclusive rights to publicly perform their works for over two years,” causing broadcasters “irreparable harm,” they said. Aereo’s claim that the Supreme Court decision made it a cable system is “astonishing,” the broadcasters said. Aereo had previously denied being a cable system while arguing its case in U.S. District Court and the Supreme Court, the broadcasters said.

It’s not clear what Aereo would do if it were granted a compulsory license, said Public Knowledge Senior Staff Attorney John Bergmayer. It could try to operate as a cable system -- perhaps seeking multichannel video programming distributor status from the FCC, or could pursue an ivi-type model where it tries to operate without paying retransmission consent, he said. “Aereo is proceeding to file the necessary statements of account and royalty fees,” said Aereo in its filing. Public Knowledge entered filings in support of ivi and Aereo during their respective cases. Either plan could run into difficulty with the FCC and cable systems leery of the competition, as well as broadcasters, said Bergmayer. Both the Supreme Court ruling and the Communications Act leave room for Aereo to survive, he said. “The law is confusing and ambiguous."

Even if an injunction is granted, it shouldn’t limit Aereo from transmitting time-shifted content, it said. “The Supreme Court held that Aereo only publicly performs when its technology allows near simultaneous transmission of over the air television broadcasts to its users.” The high court ruling doesn’t affect non-simultaneous playback, which should not be enjoined, Aereo said.