Archive for the ‘Streaming of Digital Content’ Category

UPDATE: Retransmission, Revisited: AEREO Defeats Preliminary Injunction, But Will It Prevail?

19 Jul

It seems that the internet-TV start-up Aereo has won a preliminary battle in the war being waged by major broadcasters against it’s broadcast TV delivery model.  As I first posted here, Aereo has built its business on a unique model for the retransmission of over-the-air broadcasts to their subscribers, drawing the ire of major broadcasters such as ABC, NBC and CBS.  Basically, Aereo  users pay a subscription fee to have over-the-air broadcasts retransmitted over the internet to their mobile devices.  This seems innocuous, except for the fact that Aereo takes the position that it is not required to pay any compulsory license fees to the broadcasters (as required under the Copyright Act of 1976 for cable television and satellite broadcasters).   because each user is assigned their own unique antenna from which to initially receive the broadcast signals. As I originally posted:

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“Aereo, however, seems to think that it is not subject to any such compulsory license whatsoever – by placing thousands of antennae in an area where they roll out the service, they pair each antenna to a specific subscriber.  In so doing, they essentially make the argument that their service is the same as using your TV to receive over-the-air broadcast signals…just without the direct local connection to an antenna.  Interesting…but is it infringing?”

Unfortunately for the major networks who filed suit in the Southern District of New York, the federal judge assigned to the case denied the preliminary injunction sought by the plaintiffs that would have shut down Aereo’s operations.  Essentially, the judge was not convinced that the broadcasters would suffer irreparable harm.  This decision permits Aereo to keep operating…for now.   Based upon the legal fights in this case up to this point (such as this one), this battle has only just begun.  As always, we’ll do our best keep you posted (no pun intended….really!)…

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Retransmission, Revisited: Will Aereo Prevail?

12 Mar

Well, it seems that we may have another interesting copyright situation similar to my post about Zediva, but this time involving over-the-air broadcasts to your PC, smartphone or tablet.  As initially reported through various media outlets such as, technology startup Aereo claims to have found a way to provide internet-delivered TV to your laptop/tablet/smartphone without attaching a local antenna for a low monthly subscription price.  On its face, this seems pretty nifty…except that unlike cable and satellite TV providers, Aereo would not make any payments to broadcasters for the retransmission.   Copyright infringement? Hmmm…perhaps a little background is in order.

The U.S. copyright law (17 U.S.C. Section 101 et seq.) grants certain exclusive rights to authors of original works that are fixed in a tangible medium of expression – in this case, motion pictures (such a television shows and movies).  One of these exclusive rights is the right to distribute the work – such as the primary transmission of such works over the airwaves.   For the purposes of this post, we will simplify the license flow and just say that broadcasters secure these rights to transmit such copyrighted content to your television – which you watch for free because the advertising revenue generated from commercials aired during the programming.  Since changes to the Copyright Act of 1976, cable and satellite TV providers have been required to pay a nominal cable compulsory license (17 U.S.C. 111(c)) or satellite compulsory license (17 U.S.C. 119) for the retransmission of over-the-air broadcasts to their subscribers.  Aereo, however, seems to think that it is not subject to any such compulsory license whatsoever – by placing thousands of antennae in an area where they roll out the service, they pair each antenna to a specific subscriber.  In so doing, they essentially make the argument that their service is the same as using your TV to receive over-the-air broadcast signals…just without the direct local connection to an antenna.  Interesting…but is it infringing?

I have to tip my hat to the continued creativity exhibited in the marketplace regarding commercializing copyrighted content without the blessing of the copyright owner (or its authorized licensees).  Unlike the failed effort of Zediva and its attempts to circumvent licensing costs by purchasing DVDs for viewing by subscribers one-at-a-time, this case presents a far more plausible  technology work-around (even though the commercial viability of deploying and maintaining potentially millions of tiny antennas remains questionable from my perspective). More importantly, Aereo represents a far more plausible legal argument…even though I remain skeptical.  You see, the Aereo service is not really the same as watching over-the-air broadcasts on your TV because there is a retransmission of the signal from a remote, unattached (yet dedicated) antenna over the internet to your end-user device.   Another company (ivi TV) tried to do something similar with its web-based streaming service by claiming it was legally retransmitting unmodified over-the-air broadcasts through its service by paying a nominal compulsory license fee for the secondary transmission…but after suit was brought by broadcasters and content owners, ivi TV lost its case at the trial level in federal court in the Southern District of New York, stressing that ivi TV was not really a “cable system” under the Copyright Act and needed to comply with FCC rules and regulations as well as obtain the consent of the copyright owners.  The case is currently on appeal, with a decision likely in the next few months.  Seems to me that it depends on whether internet services will be given the same treatment as “cable systems” under the Copyright Act.  Aereo has an interesting argument (and the $$$ to make its case with Hollywood heavy hitter Barry Diller behind it)…but time will tell if it is a winning one…

Yep…Aereo is “airing” some interesting issues, and hopefully the courts will weigh in with some guidance (assuming the broadcasters don’t otherwise partner with Aereo in the process…litigation is still pending, and as experience shows, anything can happen).  Until then, tune in with you tablet while you still can…;)

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Zediva…The Closing of a Copyright “Loophole” That Didn’t Exist

02 Aug

UPDATE:  Well…it seems as though that little “loophole” that start-up movie service Zediva was relying on for their business model may not be big enough to fit it. As you may recall from my previous posting here, Zediva launched on online movie rental service a few moths ago to compete with Netflix and others.  Zediva relied upon an interpretation of the first sale doctrine to allow its registered users to access the DVD content, unconstrained by the licensing agreements entered between its competitors and the studios that require the rental provider to delay offering DVD titles for rent after initial commercial release (see here).  Essentially, Zediva thought that purchasing a DVD, reserving it to a single user while streaming the video to them, then releasing it for viewing by another would circumvent copyright restrictions.  Apparently not – as recently reported by cnet news, U.S. District Judge John Walter of the Central District of California slapped a preliminary injunction on Zediva, specifically stating the following:

“Defendants’ service threatens the development of a successful and lawful video-on-demand market and, in particular, the growing Internet-based video-on-demand market. The presence of Defendants’ service in this market threatens to confuse consumers about video-on-demand products, and to create incorrect but lasting impressions with consumers about what constitutes lawful video-on-demand exploitation of Plaintiffs’ copyrighted works.”

Needless to say, it seems like curtains for Zediva.  From my perspective, there may be a limitation on who can watch a single DVD at a time, but there is no limitation on how many different customers can ultimately view a transmission of the DVD over the lifetime of Zediva’s ownership of the lawfully made copy – a fact that flies in the face of the plaintiffs’ exclusive rights.  Honestly, I thought that the technical issues and related costs would impact Zediva more quickly, but it seems the MPAA and the court took out a legal Vaudeville cane to pull Zediva from the stage. SO…if you are thinking about competing with Netflix and entering the video-on-demand streaming marketplace, you might want to take a different approach…one that avoids that cane altogether…

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