Aereo has again prevailed--at least for the moment--in its long-running battle with broadcasters that disagree with its business of receiving and retransmitting their signals without reimbursement. IPTV--and other pay TV providers--pay increasingly high fees to broadcasters for the rights to retransmit their over-the-air signals.
In a 2-1 decision, the Second Circuit Court of Appeals agreed with a previous decision by the U.S. District Court of Southern New York that Aereo did not infringe on copyrights claimed by over-the-air broadcasters CBS, NBC, ABC and Fox.
The broadcasters wanted an injunction against Aereo, which charges $8 a month for an antenna that can pick up broadcast signals and a cloud-based digital video recorder.
The court in the majority decision concluded that "Aereo's transmissions of unique copies of broadcast television programs created at its users' requests and transmitted while the programs are still airing on broadcast television (and) are not 'public performances' of the Plaintiffs' copyrighted works."
The ruling will likely be challenged because of the impact it could have across the pay TV universe where multichannel video programming distributors (MVPDs) must pay increasingly high retransmission fees to carry over-the-air content. Aereo's model appears skim past these fees, which caught the attention of dissenting Judge Denny Chin.
"They (MVPDs) capture over-the-air broadcasts and retransmit them to customers," he wrote. The big difference, Chin said, is that "those entities (MVPDs) are doing it legally, pursuant to statutory or negotiated licenses, for a fee."
While not touching on retransmission rights, Aereo CEO and Founder Chet Kanojia, said a press release that the decision "sends a powerful message that consumer access to free-to-air broadcast television is still meaningful in this country and that the promise and commitment made by the broadcasters to program in the public interest in exchange for the public's spectrum, remains an important part of our American fabric."
Aereo, which Kanojia called a "small start-up," has some powerful backers, headlined by media veteran Barry Diller.
Right now, at least as far as the broadcasters are concerned, Aereo's influence is minimal. The service is only available in the New York City area but is planning to launch in 22 cities, including Los Angeles, later this year.
A Chicago Tribune story said that the broadcasters would continue the legal fight to try to stop both the current service as well as its expansion.
"The court has ruled it is OK to steal copyrighted material and retransmit it with compensation," the broadcasters said in a statement carried by the newspaper. "We plan to move forward towards a trial on the merits of the case, and on claims that were not impacted by this appeal."
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