Aereo: retransmission not a "public performance" in the US

An Easter decision:
rabbit ears antenna do not infringe copyright

Further to Ben's post almost a month ago reporting that a group of US broadcasters had sued new start up television company Aereo, comes the news that the 2nd US Circuit Court of Appeal has held that Aereo's transmissions do not constitute a public performance.

Aereo transmits television broadcasts to users' mobile phones, computers and iPads via individual mini antenna or "rabbit ears". It positions itself as a cheaper alternative to cable and satellite, though it offers far fewer channels, since it only retransmits broadcasts which are freely available to any users with an antenna (except Bloomberg TV which has reached a deal with Aereo).

A group of television broadcasters, including ABC, CBS, NBC, Fox, Disney Telemundo and the local PBS station, filed suits in the federal court saying Aereo's service used their content without permission. An injunction was denied at first instance. The Court of Appeal upheld that ruling, relying on Cablevision  to say that Aereo's transmissions are not a public performance, concluding that:

"Aereo’s transmissions of unique copies of broadcast television programs created at its users’ requests and transmitted while the programs are still airing on broadcast television are not ‘public performances' of the Plaintiffs’ copyrighted works under Cablevision. As such, Plaintiffs have not demonstrated that they are likely to prevail on the merits on this claim in their copyright infringement action. Nor have they demonstrated serious questions as to the merits and a balance of hardships that tips decidedly in their favor. We therefore affirm the order of the district court denying the Plaintiffs’ motion."

It was key to the Court of Appeal's finding that Aereo subscribers are assigned their own tiny antennas at Aereo's data center, making each retransmission a private performance rather than a public one. Dissenting Judge Denny Chin said that Aereo violates the Copyright Act and called these tiny antennas a "sham", saying that Aereo's set up is "over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law."

The television broadcasters may yet appeal this decision to the Supreme Court.

Compare this with the decision in TV CatchUp where the CJEU held that television broadcasters can prohibit the retransmission of their programmes by another company via the internet.

A copy of the decision is available, courtesy of EFF, here.

Aereo's press release is available here.

TVCatchup: landmark or mere technicality? Either way, we have a ruling

Today the Court of Justice of the European Union gave its ruling in Case C-607/11 ITV Broadcasting Ltd and Others v TVCatchup Ltd, on a reference for a preliminary ruling from the High Court, England and Wales. To be honest, there were plenty of tell-tale signs that this was not the most difficult or controversial case for the CJEU to process.  In the first place, the judgment is not a long one by copyright standards -- just 48 paragraphs inclusive of the recitations of law and the relevant facts. Secondly, the Court felt that it could manage quite well even without the benefit of an Opinion from the Advocate General.  Thirdly, the time taken from reference to ruling is a creditably speedy 15 months and a bit.

Readers who want more detail can click through to the full text of the decision, but many will get as much as they need or want from the Curia's helpful media release:

Television broadcasters may prohibit the retransmission of their programmes by

another company via the internet 

That retransmission constitutes, under certain conditions, ‘a communication to the public’ of works which must be authorised by their author 

EU law [Directive 2001/29 -- the InfoSoc Directive] seeks to establish a high level of protection for authors of works, allowing them to obtain an appropriate reward for the use of those works, including on the occasion of communication to the public. To that end, authors have an exclusive right to authorise or prohibit any communication of their works to the public. 

TVCatchup Ltd (‘TVC’) offers an internet television broadcasting service. This service permits its users to receive, via the internet, ‘live’ streams of free-to-air television broadcasts. TVC ensures that its subscribers can obtain access only to content which they are already legally entitled to watch in the United Kingdom by virtue of their television licence. The terms to which users must agree include the possession of a valid TV licence and a restriction of use of TVC services to the United Kingdom alone. The TVC website has the facility to authenticate the user’s location and thereby to refuse access where the conditions imposed on users are not satisfied. 

Several British commercial television broadcasters take exception to the distribution by TVC over the internet, substantially in real time, of their television broadcasts. They have for that reason brought proceedings against TVC before the High Court of Justice (England and Wales) (Chancery Division) for breach of their copyright in their broadcasts and films, alleging, inter alia, that there is a communication to the public which is prohibited both by national law and by Directive 2001/29. 

The High Court asks the Court of Justice whether there is a communication to the public, within the meaning of Directive 2001/29, in the case where an organisation such as TVC streams over the internet broadcasts to members of the public who would have been entitled to access the original broadcast signal using their own television sets or laptops in their own homes. 

First of all, the Court of Justice determines the meaning of the concept of communication’
and ascertains whether, in the present case, TVC’s activity comes within the scope of that concept. Directive 2001/29 states that the right of communication to the public covers any transmission or retransmission of a work to the public not present at the place where the communication originates, by wire or wireless means, including broadcasting. In addition, authorising the inclusion of protected works in a communication to the public does not exhaust the right to authorise or prohibit other communications of those works to the public. The Court accordingly finds that, when a given work is put to multiple use, each transmission or retransmission of that work using a specific technical means must, as a rule, be individually authorised by its author. 

Accordingly, given that the making of works available through the retransmission of a terrestrial television broadcast over the internet uses a specific technical means different from that of the original communication, that retransmission must be considered to be a ‘communication’ within the meaning of Directive 2001/29. Such a retransmission cannot therefore be exempt from authorisation by the authors of the retransmitted works when these are communicated to the public. 

Second, the Court of Justice ascertains whether the protected works have in fact been
communicated to a ‘public’. According to the Court’s case-law, the term ‘public’ refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons. The Court points out that the cumulative effect of making the works available to potential recipients should be taken into account and that, in that connection, it is in particular relevant to ascertain the number of persons who have access to the same work at the same time and successively. 

The Court finds that, in the present case, the retransmission of the works over the internet is aimed at all persons resident in the United Kingdom who have an internet connection and who claim to hold a television licence in that State. Those persons may access the protected works at the same time, in the context of the ‘live streaming’ of television programmes over the internet. Thus, that retransmission is aimed at an indeterminate number of potential recipients and implies a large number of persons. Consequently, the Court holds that, by the retransmission in question, the protected works are indeed communicated to a public within the meaning of Directive 2001/29. 

Accordingly, the Court answers that the concept of ‘communication to the public’, within the meaning of Directive 2001/29, must be interpreted as covering a retransmission of the works included in a terrestrial television broadcast, where the retransmission is made by an organisation other than the original broadcaster, by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server, even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver.

The best thing about this decision is not so much the ruling which, in this blogger's opinion, was never seriously in doubt, but in the firm and decisive manner in which the CJEU expressed it. Rebecca Swindells (Field Fisher Waterhouse, quoted by Bloomberg), observed that it would have been a "real shock", had it gone the other way. Bruce Pilley, a director of London-based TV Catchup quoted by the same agency, did not sound too downcast, though: “Whatever the outcome of the ECJ, TVCatchup has already emerged as the clear victor from years of legal wrangling, and has established itself as the de facto online broadcast platform for Web, tablet, mobile and numerous other applications.” So far as The Inquirer was concerned, the decision turned on a mere technicality, that TV Catchup's services might be received by customers who were not holders of TV licences.  The Financial Times viewed the ruling not as a technicality but as a landmark, quoting Harbottle & Lewis's Tony Ballard: "For years, nobody has known whether the unauthorised retransmission of live TV on the internet infringes copyright. The court today . . . decided that it does.”

Broadcast retransmission to remain unregulated in Canada

Last week the Canadian Supreme Court ruled in Cogeco Cable Inc, et al v. Bell Media Inc et al that Canada's broadcast regulator does not have the authority to impose a "value for signal" plan under which television broadcasters would charge cable and satellite firms for retransmission of their content.

In Canada, seeking to respond to recent changes to the broadcasting business environment, the industry regulator, the Canadian Radio-television and Telecommunications Commission (CRTC) sought to introduce a market-based value for signal regulatory regime, under which private local television stations could choose to negotiate direct compensation for the retransmission of their signals by cable and satellite companies (known as broadcasting distribution undertakings or BDUs). The new regime was intended to give broadcasters the right to authorise or prohibit BDUs from retransmitting their programming services. The BDUs argued that this kind of regime would conflict with the Copyright Act. The Federal Court of Appeal held that the proposed regime was within the statutory authority of the CRTC pursuant to its broad mandate under the Broadcasting Act to regulate and supervise all aspects of the Canadian broadcasting system, and that no conflict existed between the regime and the Copyright Act. This decision was appealed to the Supreme Court who found the proposed regulatory regime to be outside the jurisdiction of  the CRTC.

The Supreme Court found that there was no provision of the Broadcasting Act expressly grants jurisdiction to the CRTC to implement the proposed regime, and in any event that the proposed regime would conflict with specific provisions of the Copyright Act. In particular the court held that the proposed value for signal regime would conflict with:

s. 21(1): because it would grant broadcasters a retransmission authorization right against BDUs that was withheld by the Copyright Act. The court held that a broadcaster's exclusive right to authorise, or not authorise, another broadcaster to simultaneously retransmit its signals did not include a right to authorise or prohibit a BDU from retransmitting those communication signals. The court said that " it would be incoherent for Parliament to set up a carefully tailored signals retransmission right in s. 21(1), specifically excluding BDUs from the scope of the broadcasters' exclusive rights over the simultaneous retransmission of their signals, only to enable a subordinate legislative body to enact a functionally equivalent right through a related regime."

s. 31: which creates an exception to copyright infringement for the simultaneous retransmission by a BDU of a work carried in local signals. The value for signal regime would have given broadcasters deletion rights, meaning that any broadcaster unable to agree with a BDU on the relevant compensation for the distribution of its programming services could require any program to which it has exclusive exhibition rights to be deleted from the signals of any broadcaster distributed by the BDU. The court held that "the value for signal regime would effectively overturn the s. 31 exception, entitling broadcasters to control the simultaneous retransmission of works while the Copyright Act specifically excludes retransmission from the control of copyright owners, including broadcasters."

Therefore the Supreme Court allowed the appeal and held that the proposed regime was outside the CRTC's jurisdiction.

This seems to be the opposite to what has been decided in Europe as in Airfield the CJEU found that satellite package providers who retransmit content give access to a "new public" and must therefore get authorisation to retransmit the work.. See here for the US and European positions on retransmission.

 

 This is what Canada looks like today... 

© carrib

 

Aereo barred?

OK, a cheap pun at the expense of chocolate bars, but it seems US broadcasters are less than impressed with new start up TV company Aereo, which aims to stream television programmes to users' mobile phones, computers and iPads in the New York Area.

Two groups of broadcasters have now sued the startup, which was founded by Chet Kanojia and is backed by media billionaire Barry Diller, and which sends live local TV feeds to iPhones and iPads and other web enabled devices in the New York area. The Wall Street Journal reports that the broadcasters, including ABC, CBS, NBC, Fox, Disney Telemundo and the local PBS station, have filed suits in the federal court, saying Aereo Inc.'s service uses their content without permission.

Aereo launched two weeks ago, but it's available by invitation only. Subscribers pay $12 per month for access to 27 locally broadcast TV channels through the Web browsers on their Apple devices. It's set to open up to more subscribers on March 14th with advertising saying "Television on Your Terms. Watch Live TV All the broadcasts - NBC, ABC, CBS, PBS, FOX, ...". The company hopes to expand service to other cities.

Aereo says the suits are groundless and it looks forward to "a full and fair airing of the issues" and explains that its business exploits what it believes is a loophole in the laws governing retransmission of local broadcasts because it doesn't use one big antenna to pick up the local broadcasts and relay them to the Internet. Instead, "it uses one tiny antenna for each subscriber that's watching", acting as a remote antenna for each subscriber, rather than taking broadcasts and retransmitting them the company says it has installed sufficient racks of "rabbit ears" antennae in NYC to ensure there is a set available at any given time for every subscriber. The broadcasters disagree saying the retransmission of their services is "unlawful".

see more on Aereo at https://aereo.com/features and http://www.pcmag.com/article2/0,2817,2401069,00.asp (the aereo.com website seems to take a VERY log time to load).

For your very own rabbit ears, see Shona Heath's (illustrated above) here http://showstudio.com/shop/product/bunny_ears