Asserting that Aereo’s online streaming service is not entitled to a compulsory cable license, the broadcast television networks asked a New York federal court judge last Friday to issue a preliminary injunction that would prohibit Aereo from “streaming, transmitting, retransmitting or otherwise publicly performing any copyrighted programming over the Internet . . . or by means of any device or process throughout the United States of America.”
The networks’ motion follows in the wake of a June 25 U.S. Supreme Court ruling in which the justices concluded that Aereo’s method of capturing live, over-the-air television programming and streaming that programming to customers through a network of dime-size antennas assigned to individual subscribers violates broadcaster copyrights. Although Aereo has since suspended its operations in accordance with the Supreme Court ruling, the company seized upon comments made by Justice Stephen Breyer in asking the U.S. District Court for the Southern District of New York to grant Aereo the status of a cable operator that would be entitled to compulsory licensing rights under Section 111 of the Copyright Act. Writing for the Supreme Court majority, Breyer observed that “behind-the-scenes technological differences do not distinguish Aereo’s system from cable systems.” The U.S. Copyright Office (USCO) has since accepted Aereo’s request for Section 111 licensing on a provisional basis, although the USCO concluded in a previous case involving online streaming firm ivi that online video distributors are not eligible for compulsory licensing rights.
In a memorandum accompanying the motion for injunctive relief, the networks noted that the Supreme Court did nothing to overturn USCO precedent and stressed that the high court opinion “notably does not say that Aereo is a cable system for the purposes of Section 111 or that Aereo is entitled to the enormous benefits of the Section 111 compulsory license.” Arguing that retransmission of broadcast programming, “while sufficient to bring Aereo within the broad Transmit Clause, is not sufficient to bring Aereo within the narrow Section 111 license,” the networks proclaimed: “otherwise, any broadcast retransmission service whatsoever, including the proverbial Internet-savvy ‘kid in the dorm room,’ would qualify for the Section 111 license.” Aereo is expected to file its response by August 29.