Aereo Loses First Round in Copyright Office, While Dish Wins its Next Round in the Ninth Circuit [telecom]

By Herry Cole, CommLawBlog, July 20, 2014

More developments in the realm of Internet retransmission of OTA signals.

Aereo - the gift that keeps on giving, at least when it comes to blogworthy content. As we reported, after it got its clock cleaned at the Supreme Court, Aereo bounced back with Plan B, which amounted to declaring itself (a) a cable system and, thus, (b) eligible for the compulsory copyright license granted to cable systems. But you can't just say "I'm a cable system" and expect anybody to believe you. So Aereo went ahead with some of the paperwork required of f'real cable operators; among other things, it filed a bunch (14, to be exact) of Statements of Accounts with the U.S. Copyright Office, along with some royalty and fee payments amounting to the princely sum of $5,310.74.

A nice gesture, but wouldn't you know it, the Copyright Office (CO) was not inclined to play along with the gambit. In a brief letter dated July 16, 2014, the CO let Aereo know that, as far as the CO is concerned, Aereo is not a cable system entitled to the compulsory license. As it turns out, more than a decade ago the CO had concluded that "internet retransmission of broadcast television fall outside the scope"of the compulsory license. That's bad news for Aereo, whose system is firmly - indeed, exclusively - based on Internet retransmission.

The CO also noted that, in the ivi, Inc. case in 2012, the U.S. Court of Appeals for the Second Circuit had agreed with the CO's interpretation. That's even worse news for Aereo because, at least for the last couple of years, the Second Circuit has been Aereo's BFF in its nationwide litigation wars. Of course, Aereo's view is that the Supreme Court's decision effectively overruled ivi so ivi really isn't good law anymore. But that's a tough argument to make (credibly, at least) when the Supremes didn't even mention ivi in their opinion. Normally, when the Supreme Court wants to overrule something, they'll say so.


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Neal McLain

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Neal McLain
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