Copyright Alliance Supports Broadcasters' Cert Petition in Aereo

On November 12, 2013, the Copyright Alliance filed an amicus brief with the Supreme Court in support of the broadcaster’s petition for certiorari in ABC v. Aereo. The case arises out of a flawed US Court of Appeals for the Second Circuit ruling earlier this year, which sanctioned Aereo’s subversive action. The lower court green lit Aereo under a perceived loophole in the Copyright Act, rooted in their equally enigmatic 2009 Cablevision decision.

Professors Hugh Hansen, Raymond Nimmer, and John Simson, as well as Copyright Alliance Academic Advisory Board Members, Jon Garon, Sean O’Connor, and Mark Schultz joined the Copyright Alliance’s amicus brief. Eleanor Lackman, Mary Rasenberger, Nancy Wolff, and Scott Sholder?of Legal Advisory Board Member Cowan, DeBaets, Abrahams & Sheppard drafted the brief. 

The brief makes two arguments for why the Supreme Court should grant certiorari. First, the Second Circuit’s decision has a substantial and immediate impact that on a wide array of industries. Second, the brief points to the doctrinal confusion that the decision creates in the legal community regarding the meaning of the Copyright Act.

The Second Circuit’s reading of Cablevision contradicts the Copyright Act’s provision establishing that retransmission of broadcast television – via any device or process – is subject to the public performance right under 17 U.S.C. § 106(4) and that, therefore, Internet retransmitters must negotiate licensing fees with the rights owners. The goal of these provisions is to ensure adequate compensation to those who make creative works available, from authors to investors and distributors. Retransmission consent fees provide funding that is integral to the ability to fund original programming, local news reporting and everything in between. The brief emphasizes that

“in an age where the present and future business of copyright dissemination, especially via the Internet, is increasingly focused on dissemination via performance (including through on-demand music services such as Spotify and Rdio), the ability to reap benefits from the public performance right is one that has been, and needs to be, cautiously protected so that these industries can continue to thrive.”

If Aereo is allowed to stand, existing licensed legitimate businesses would lose the incentive to pay for broadcasters’ creative content. Without the promise of compensation, there would be little to no incentive for the creation of these works. The consumers who enjoy and rely upon creative works will ultimately feel this loss, rendering Aereo a truly “destructive” technology.

The brief then focuses on the effects that the decision below has on innovation.

“The only difference between licensed retransmission services and Aereo is that Aereo makes hundreds of intermediate copies in the process of retransmission. These copies do not make Aereo’s system operate better, faster, more cheaply, or more efficiently. Rather, they are technological inefficiencies shamelessly designed to exploit what the creators of Aereo – or their lawyers – believed was a loophole in the law.”

Ultimately, the Second Circuit’s Aereo decision incentivizes developers to create delivery services that game the copyright system, rather than develop better means of delivery.