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American Court issues injunction in case relating to re-transmission of broadcast signals over internet

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NEW DELHI: Insisting that it was not striking a blow against new communications technology, the American Supreme Court has ruled that the engineers at the new firm of Aereo had — so far — not found a way to avoid violating television networks’ copyright privileges by delivering their programmes to Aereo’s customers for a small monthly fee.

In what is clearly a landmark decision, the SC reversed a lower court decision denying an injunction to broadcasters in a case in which the court considered “whether a company ‘publicly performs’ a copyrighted television programme when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.”

The petition was filed by American Broadcasting Companies against Aereo.

The case arose from a broadcaster petition to reverse a lower court ruling that denied an injunction against Aereo.

The injunction was sought to shut down the service while the question of copyright was determined.

Broadcasters claim Aereo is violating their copyright by reselling TV signals—like a cable operator—without permission. Aereo says it is not reselling signals, but “renting” individual antennas to monthly subscribers who pay $8 to $12 monthly for the multichannel service targeting second-screen devices.

However, senior Supreme Court lawyer Amy Howe who is an expert on copyright and edits the SCOTUS Blog wrote: “Aereo performs petitioner’s works publicly within the meaning of the transmit clause of the Copyright Act.”

Analysing the order, the blog said the analytical technique the Court used in finding a likely copyright violation by Aereo was to compare its streaming of internet-based TV programmes to cable TV systems’ snatching of TV broadcasts out of the airwaves for re-delivery to customers.  Congress had meant to bar that kind of programming in a major 1976 revision of the Copyright Act, the Court said, and it applied that change directly to Aereo’s clever new business model.

The over-the-air TV broadcast industry had taken the case to the Supreme Court, claiming that its very survival was at stake.  Aereo’s system, the industry contended, was offering a very cheap version of TV programming to its customers while paying not a cent in royalties to the TV networks and their program developers.  This was threatening to draw the networks’ own paying customers away, depriving it of revenues that have been replacing their declining take from advertising, the TV firms said.

The Court, in its six-to-three ruling, said nothing about rescuing the TV broadcasters, basing its ruling on a fairly simple application of what it means to “perform” a copyrighted program through distribution to “the public.”   Aereo’s system, Justice Stephen G. Breyer wrote for the majority, both performs the copyrighted programs and does so through delivery to the public.

Aereo has developed a system in which it uses thousands of tiny antennas, each tuned to respond to an individual customer’s internet demand for a particular TV programme, and through those antennas it delivers to each customer only their own personal copy.   Aereo contended that it simply was supplying the technology hardware — like a DVD recorder — to enable its customers to get access to TV programmes that were broadcast over the air.

The Court rejected that claim, concluding that Aereo was not simply an equipment provider. It was putting on the TV shows for its customers, the public.

However the Court said it was issuing only a narrow ruling.  It said it was dealing, at this point, only with Aereo’s system so far as it enabled its viewers to view copyrighted TV programmes “live,” or after only a brief delay. Justice Breyer stressed that the decision said nothing about downloading a TV programme in order to recover it and keep it on hand for somewhat later viewing. Justice Breyer also said the new decision was not dealing with other potential time-shifting download technologies.

Aereo’s case will now return to lower courts, and it appears that Aereo may have some opportunity there to salvage some of what its offers to its customers.  

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