Quick thoughts on Aereo

So I appear to be among the minority that believes that Aereo is a fairly narrow decision that can be summed up as: if it looks like a cable provider, swims like a cable provider, and quacks like a cable provider, it is probably a cable provider (and thus subject to regulation under the transmit clause).  I don’t believe it touches the previous Cablevision case because, after all, Cablevision IS a cable provider and already pays royalties to retransmit copyrighted works, so its RS-DVR service serves only a time-shifting function (and is thus legal under Sony).  And as to the greater cloud, I think the general lesson is: “don’t look too much like a cable provider.”  Which if you drill down means, don’t use antennas to pick up broadcast signals and then retransmit those signals to others without permission.

I also think the decision actually went as far as overruling WPIX, Inc. v. ivi, Inc., which is a Second Circuit case that held that providing video over the Internet similar to a cable company is NOT the same as being a cable provider.  This matters a lot because previously, Internet TV providers could not seek compulsory licenses to obtain their content due to the statutory definition of cable provider and the Copyright Office’s subsequent interpretation of this language.  Back when the decision was first issued, it was never appealed, but should the same type of case be brought now (by Aereo, or a competitor), there would be a good argument that the Aereo decision has changed the governing law, requiring a new assessment.  This is important, because as long as we are going to tie communications law and copyright together in this strange hybrid of the two, there needs to be a way to enjoin the anticompetitive power held by content providers when it comes to obtaining licenses for their work.

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