In the latest chapter in the ongoing battle between US broadcasters and online retransmission service providers Aereo and FilmOnX, broadcasters have asked the Supreme Court to rule on the issue of whether retransmission services constitute a "public performance", following further conflicting judgments from the District Courts in Massachusetts and Columbia on this question.

Both Aereo and its competitor FilmOnX (previously known as Aereokiller) provide online retransmissions of free to air broadcasts to fee paying subscribers and thereby provide an alternative to costly cable TV services. Both employ antenna and digital video recording (DVR) technology which allows subscribers to either watch programming live (with a short time delay) or record it for viewing at a later time. Crucially, in either case, subscribers are each assigned the content stream from an individual antenna, so the retransmission is effected on a one-to-one basis. US broadcasters, including Fox and Hearst have brought numerous actions against these services, claiming that they infringe the public performance right under US copyright law. Both Aereo and FilmOnX claim in defence that their services merely enable users to access free to air content with tiny TV antennas, and therefore do not require licences from broadcasters.

In a decision issued on 8 October, the District Court of Massachusetts has denied an injunction against Aereo's services, finding that its retransmission service is akin to a remote DVR service, and does not constitute a public performance. This is in line with the earlier ruling (in April 2013) of the Court of Appeals for the Second Circuit, which held that the potential audience of each of Aereo's transmissions is the single user to whom each individual antenna is assigned: each one-to-one connection is a private performance and Aereo's service does not therefore constitute a "public performance". This ruling was based heavily on the precedent set by the Cablevision case it which it was held that a remote-storage DVR system did not infringe broadcasters' public performance rights. However, there was one powerful dissenting opinion taking the view that (1) it is clear from the legislative history of the Copyright Act that retransmissions of the kind carried out by Aereo are public performances and (2) the reliance on the Cablevision precedent is misguided as Cablevision was wrongly decided or, if correctly decided, should not be extended to apply to Aereo's business model. Interestingly, Judge Nathaniel Gorton in the Massachusetts District Court acknowledged that broadcasters are likely to suffer harm through lost cable subscription fees but stated "it seems more likely that the harm will take several years to materialise".

The contrary view has been taken by the District Courts of California and Columbia in relation to actions brought against FilmOnX, a competing service which was launched after Aereo's first win in the District Court of New York. Most recently (in September 2013) the District Court of Columbia granted an injunction against FilmOnX's service: although Aereo and FilmOnX's services are fundamentally identical, the court did not consider itself bound by the Second Circuit decision in Aereo. This follows the earlier (December 2012) decision of the District Court of California also granting an injunction against FilmOnX.

The Columbia District Court has granted an injunction against FilmOnX applicable across the entire US with the exception of the Second Circuit (comprising the states of New York, Connecticut and Vermont) in recognition of the different position taken by the Second Circuit Court of Appeals.

So what happens now? Fox, CBS and other parties have recently filed a further action against Aereo in Utah, and ABC and other major US broadcasters have asked the Supreme Court to overturn the Second Circuit ruling in favour of Aereo. Meanwhile, FilmOnX has appealed the decision by the District Court of California to the Ninth Circuit Court of Appeals and has announced that it will likewise appeal the Columbia ruling (to the United States Court of Appeals for the District of Columbia Circuit). Certainly, if FilmOnX succeeds in either appeal, there will be a split between the appeal courts which would require resolution from the Supreme Court.

Cases against similar providers of retransmissions and remote DVR services have also recently been heard in the EU, Australia and Singapore. In the EU, The CJEU has held (in the TV Catchup reference in 2013) that the online streaming of broadcasts, which viewers were already entitled to view, still constituted a "communication to the public" (which is somewhat different to the "public performance" rights under US law), even though each live stream was addressed to an individual user rather than a group of users: it is the cumulative effect of making the works available to potential recipients which should be taken into account and it is irrelevant whether this is through a series of one to one connections. Following this ruling, TVCatchUp has now been ordered to stop streaming a number of channels in the UK. In Australia, the National Rugby League and Australian Football League have, on appeal, succeeded in an infringement action against Optus which provided a service whereby subscribers could record free to air television on a remote server (called a "cloud based personal video recorder) and have it streamed back to them via the internet. At first instance it was held that Optus' service fell within the "time shifting" exception as it was the user which made the copy for private use, and that although there was a communication, it was not to the public as the user was sending a copy to him or herself. However, on appeal the Federal Court overturned this, ruling that Optus was so involved in the recording process that it was at least jointly making the copy and therefore could not fall within the time-shifting exception. Somewhat unfortunately, the Appeal Court did not go on to consider whether there was also a "communication to the public", and leave to appeal to the High Court has been refused. Conversely, an identical service (RecordTV) has been held by the Singapore Court of Appeal not to infringe copyright in the free-to-air broadcasts recorded on the basis that (1) the communications made by Record TV were private, individual communications to each user, and users could not be considered "the public", and (2) in any event, it was the registered users themselves who had "communicated" the broadcasts.

The proliferation of online retransmission/recording services has thrown the spotlight on the application of copyright law in this area, in particular, the meaning and extent of the "communication to the public" and "public performance" rights, with divergence as to whether such services require authorisation from rightsholders. The US position will remain somewhat unclear pending the outcome of appeals in the Aereo/FilmOnX actions and potential Supreme Court ruling. What is clear is that EU and Australian law is more favourable to claims against intermediaries seeking to repackage streamed/broadcast content online.

Our client alert on the TVCatchup ruling can be found here.