In the wake of the June 25 Supreme Court decision, the online distributor of broadcast signals is taking a new legal tack: it’s a cable system and entitled to the compulsory license just like any conventional cable system. In making the argument, Aereo cites the high court’s finding that Aereo is “for all practical purposes” a cable system. Arguing for an immediate injunction against Aereo, broadcasters said Aereo’s new argument is “astonishing,” given its past insistance that it was not a cable system.
Aereo is not giving up the fight, not just yet.
The online purveyor of broadcast signals has come up with a new theory for why it should not be shut down for copyright violations as broadcasters have been demanding.
The theory: it’s a cable system and entitled to the compulsory copyright license just as any conventional cable system is.
In its June 25 ruling, the Supreme Court rejected Aereo’s claim that is was an antenna rental service and as such did not incur any copyright liability.
But in doing so, the high court said repeatedly that Aereo was similar to a cable system. It said that Aereo is “substantially similar” to, has an “overwhelming likeness” to, and “is for all practical purposes a traditional cable system.”
Seizing on that language, Aereo, in a joint “next steps” letter to a New York district court yesterday, said it would do business going forward as a cable system. The district court is deciding whether to enjoin Aereo from operating.
“The Supreme Court’s holding that Aereo is a cable system under the Copyright Act is significant because, as a cable system, Aereo is now entitled to the benefits of the copyright statutory license pursuant to the Copyright Act,” Aereo said.
“Aereo is proceeding to file the necessary statement of account and royalty fees,” it added.
Aereo asked the court for an immediate ruling on its eligibility for the compulsory license. Aereo’s survival is in “jeopardy,” it said. In the wake of the Supreme Court ruling, Aereo said it has suspended operations. “Aereo is taking in no new revenue, and continuing to incur enormous costs such as employee salaries, equipment and lease payments and vendor payments.”
Still celebrating their victory over Aereo at the Supreme Court, broadcasters, in their half of a joint letter to the court, said it was “astonishing” that Aereo was now portraying itself as a cable system after repeatedly insisting throughout the litigation that it was not.
In any event, the broadcasters said, the court should not delay in shutting down Aereo. “That is the most important next step.”
Aereo also raised yet another defense in the district court letter. “The Supreme Court held that Aereo only publicly performs and liable for copyright when it transmits broadcast programming at the same time it is broadcast.
“If the court finds the compulsory license does not apply, any injunction must be limited to simultaneous or near-simultaneous streaming — the Supreme Court did nothing to prohibit — and indeed reaffirms the vitality of — non-simultaneous playback from copies created by consumers.”