[opendtv] Aereo: A Cable System, Subject to Statutory License | Multichannel
- From: Craig Birkmaier <craig@xxxxxxxxxxxxx>
- To: OpenDTV Mail List <opendtv@xxxxxxxxxxxxx>
- Date: Fri, 11 Jul 2014 07:06:13 -0400
http://www.multichannel.com/news/distribution/aereo-were-cable-system-subject-statutory-license/375819
Aereo: A Cable System, Subject to Statutory License
Aereo may be down -- its service remains suspended following its defeat in the
Supreme Court -- but it's not out.
The Supreme Court reversed and remanded a Second Circuit Court of Appeals
decision denying an injunction sought by broadcasters, which appeared to settle
the underlying copyright challenge brought by broadcasters. But in a joint
letter to the New York District Court that has yet to try that case -- but also
refused to enjoin the distributor -- Aereo said that since the Supreme Court
had ruled it was essentially a cable system, it was entitled to a compulsory
license and was in the process of filing "the necessary statements of account
and royalty fees."
In their portion of the letter, broadcasters say they will ask the court to
enjoin Aereo from violating their public performance rights -- the Supremes
found that Aereo's delivery of signals was not remote technological
facilitation but a public performance.
The Supremes directed both parties to write a joint letter to the lower court
explaining what they thought that court's next steps should be. The District
court denied a broadcaster injunction, but was awaiting the Supreme Court
decision before proceeding to try the case.
As to Aereo's assertion that it was now a cable system entitled to a Sec. 111
statutory license, broadcasters said that shift in position -- Aereo had said
as a technological facilitator it was not a distributor subject to that license
or its payments -- made it almost impossible to instruct the court on the best
way to proceed. That includes the recovery of damages and/or fees for the harm
done to broadcasting while Aereo was allowed to continue to operate.
The broadcast plaintiffs blamed Aereo's "refusal to clearly specify whether,
when and in what fashion it intends to continue operating," and its "shifting
and inconsistent positions."
They said that while Aereo permanently pull the plug, a "consensual resolution
of the litigation seems more likely."
Whatever happens, according to the broadcasters, if Aereo wants to amend its
pleading to assert a compulsory license defense, the injunction should be
enforced while it pursues that course. "That is the most important next step,
given the Court's ruling that Aereo has been violating plaintiff's exclusive
rights to publicly perform their works for over two years, during which time
plaintiffs, as this court held, have suffered irreparable harm."
Aereo says that since it is like a cable system and entitled to a statutory
license, no injunction should be issued. Aereo also says the injunction
broadcasters sought was against playback of consumer recordings any time before
a broadcast was complete, but the Supremes said the public performance
definition applied to near simultaneous transmissions.
Aereo says if the District Court disaagrees that Aereo is entitled to a
statutory license, the injunction must extend only to near-simultaneous
streaming.
Aereo founder Chet Kanojia reiterated in a note to Aereo supporters that it had
only “paused” operations as it mapped out its next step, which it is now doing.
Regards
Craig
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