A Blip in the Transmission: Part 1

When technology changes the law often struggles to keep up. For decades, television was ruled by broadcast channels, free of charge to anyone with a television and, because of technological limitation, local affiliates were often tied to a major national network. While that has changed drastically in the intervening years, the copyright laws of America have not matched this technological evolution, creating various areas of uncertainty where old laws do not fit snugly against newer ideas.

Aereo is a company that has developed a way to allow people, for a fee, to watch broadcast television on their computers. For obvious reasons, this service has drawn the ire of television broadcasters, leading to a number of suits in various district courts throughout the country. Because the old copyright law regarding this particular issue was conceived of in the 1970s, when household computers, let alone using such a device to watch television, was more speculative than anything else, the circuits have split on whether or not current copyright law forbids Aereo from providing these broadcast streams to their customers, and the case is due before the Supreme Court in its next term to resolve the issue once and for all.

In the meantime, however, the case against Aereo in Utah, where it began providing its service in July 2013, has been stayed pending the outcome of the Supreme Court decision, but a district court still felt it necessary to rule on whether the plaintiff would be granted a preliminary injunction in the interim.

The crux of the Aereo cases, both here and in other circuits, has been the interpretation of the “Transmit Clause” that gives the copyright holder the exclusive right to publicly perform or transmit a performance. The question is whether or not Aereo’s service constitutes a public transmission, and thus violates that copyright act. Aereo’s argument, which has been successful in the Massachusetts, as well as the 2nd Circuit, is that its services merely allows its customers to view the transmission on a private basis, and so does not constitute a public performance. The opposing argument, made by broadcast networks around the country, is that Aereo’s service, technologically advanced though it may be, is, in practical terms, little more than a public retransmission of copyrighted broadcasts, and a clear violation of the Copyright Act, a view endorsed by courts in D.C. and California.

The Utah court ultimately agreed with the latter position. First, it noted that the “Transmit Clause” was enacted in 1976 as a result of the first cable systems’ habit of retransmitting local broadcast networks on their cable systems without paying for the right to do so, with the understanding that the revised language would force cable companies to receive a license to continue to retransmit these copyrighted works, and the position of Aereo is essentially analogous to those early cable companies.

The court then dismissed what had been a compelling argument for Aereo in other jurisdictions, a complex attack that relied on using prior decisions to create a distinction between public and private retransmission and to then argue that based on the specific mode of transmission used by Aereo, each retransmission created a unique copy to a single user, and should therefore be considered a private retransmission, not covered under the Copyright Act. The Utah court was unwilling to make this leap, instead relying on legislative history and its interpretation of the statute to reject this distinction, explaining that, technological technicalities aside, Aereo’s service did likely constitute a violation of the Copyright Act and, as a result, the plaintiffs in this case had a likelihood of success on the merits, clearing the first hurdle for a preliminary injunction.

Next week we will consider the second, third and fourth factors related to whether or not the plaintiff was granted a preliminary injunction.

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