Court Battles Continue Over Hopper, Aereo

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Court Battles Continue over Hopper, Aereo 10.24.2013 Broadcasters continue to wage legal warfare to stop the oncoming technology tide, with battles heating up on two fronts: Dish Network's Hopper and IAC-backed Aereo. Fox is working to get the courts to take legal action against Dish Network's Hopper with Sling, which is a set-top box with both ad-skipping and place-shifting technology built in. On Wednesday, Fox filed a notice of appeal to California's Ninth Circuit Court of Appeals after U.S. District Judge Dolly Gee last month denied Fox the injunction it was seeking. Fox is seeking an "en banc" hearing in front of a full panel of judges. It's not Fox's first appearance in front of the court on the issue, although earlier requests applied to different iterations of the service. Similarly, last month U.S. District Judge Laura Taylor Swain in New York denied ABC's motion for a preliminary injunction against Dish' AutoHop, a separate set-top box that skips ads but doesn't "sling" TV programming to smart phones and tablets. Meanwhile, Aereo defended itself in Salt Lake City where broadcasters are working to stop the roll-out of its service, which streams broadcast signals to subscribers over the Internet for $10 a month. Broadcasters argue that Aereo is infringing their copyrights by "publicly performing" shows without permission, while Aereo says what it's doing is perfectly legal. "A consumer who tunes an individual antenna to access a program, makes an individual copy of a broadcast television program, and then watches that program, does not violate the copyright laws," Aereo argues in the Utah case. "The entity that provides the device the consumers use to achieve that lawful purpose does not violate the copyright laws either." Aereo is petitioning to transfer the Utah lawsuit to the Southern District of New York, where U.S. District Court Judge Alison Nathan is presiding over a similar case. So far, broadcasters have lost twice on this issue, in courts in New York and Boston. Two weeks ago, the broadcast networks filed their case against Aereo with the Supreme Court. Brief Take: Broadcasters might be able to stem the technology tide that threatens their businesses, but history has shown that enterprises fare better when they adapt rather than fight. [Image courtesy of Engadget].

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371 Copyright Act of 1976 — Transmit Clause — ABC, Inc. V. Aereo, Inc. In
Copyright Act of 1976 — Transmit Clause — ABC, Inc. v. Aereo, Inc. In the late 1940s and early 1950s, a new industry of community an- tenna television (CATV) exploded.1 By placing an antenna on top of a hill above a community and transmitting signals to subscribers’ houses via coaxial cables, CATV companies provided television to areas where hilly terrain made receiving traditional broadcast signals difficult.2 Af- ter the Supreme Court held that such systems did not violate copyright holders’ exclusive rights to public performance,3 Congress revised the copyright law in 1976 and, among other things, enacted the Transmit Clause to supersede those decisions and make such transmissions an infringement of copyright. Last Term, in ABC, Inc. v. Aereo, Inc.,4 the Supreme Court held that a company that transmitted broadcast televi- sion to users via the Internet violated the Transmit Clause, even though the user selected what content to watch, and even though each user had a dedicated antenna that produced a “personal” copy of the broadcast.5 The Court employed a functionalist approach, relying on analogical reasoning rather than analyzing the underlying technical operations of the system — the method that Justice Scalia adopted in his dissent. In doing so, the majority introduced unpredictability into the law by leaving important doctrinal questions unanswered and adopting an approach that lacks clear boundaries. Prior to the Copyright Act of 1976,6 the Court read the public per- formance right narrowly. In 1968, in Fortnightly Corp. v. United Art- ists Television, Inc.,7 the Court held that a CATV operator is more analogous to a “viewer” than a “performer,” and thus cannot face lia- bility under the Copyright Act.8 The Court affirmed Fortnightly in Teleprompter Corp.
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