Circuit Split Watch: Streaming Live Broadcast Television

This article first appeared in the June 10, 2013, issue of the National Law Journal’s Supreme Court Brief.

Through a service called Aereo, live broadcast television is available on computers in some areas. Many consumers welcome the option, but broadcasters, alleging copyright infringement, do not.

One federal appellate court recently ruled in favor of Aereo, while another is reviewing a contrary result. The U.S. Supreme Court may have the final word.

For eight dollars a month, Aereo subscribers can watch live broadcast television on their computers, tablets and smart phones. Available channels include ABC, CBS, NBC, FOX, PBS and others. Aereo is now in New York City and Boston, as well as surrounding areas. The company plans to expand in the near future to more than twenty cities.

In April, the U.S. Court of Appeals for the Second Circuit, in WNET v. Aereo, Inc., refused to block the streaming service, upholding the lower court’s denial of a preliminary injunction. Circuit Judge Christopher Droney wrote the majority opinion, joined by Judge John Gleeson, visiting from the U.S. District Court for the Eastern District of New York. Circuit Judge Denny Chin vigorously dissented.

Writing for the majority, Droney held that Aereo is essentially an antenna for the new millennium. Over the years, many viewers have used individual rooftop antennas to capture broadcast programming. Aereo uses new technology to do the same thing. Thousands of mini-antennas, about the size of a dime, are installed on boards at Aereo.

“Aereo assigns an individual antenna to each user. No two users share the same antenna at the same time, even if they are watching or recording the same program,” Droney explained.

Not so fast, countered Chin. Aereo transmits “programming without the authorization of the copyright holders and without paying a fee.” And its technology is “a sham,” he said.

Aereo has “no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act.”

The Copyright Act gives copyright holders the exclusive right “to perform the copyrighted work publicly,” which means “in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.”

Chin favorably cited a 2012 preliminary injunction order from the opposite coast involving Aereokiller, a not subtly named Aereo competitor.

In that case, Fox Television Stations, Inc. v. BarryDriller Content Systems, PLC, Judge George Wu of the U.S. District Court for the Central District of California blocked a broadcast-TV-to-Internet service. Like Chin, Wu found that the broadcasters’ exclusive public performance rights had been violated.

The California decision is on appeal and currently being briefed at the U.S. Court of Appeals for the Ninth Circuit. Numerous amici have filed briefs.

The Second Circuit is considering whether to rehear the Aereo case en banc. Chin’s forceful dissent and the fact that one of the judges in the majority was visiting make the full court’s review more likely. Numerous amici have also filed briefs in the Second Circuit.

No matter what happens in either circuit (or in related litigation popping up as Aereo and copycat services expand), a Supreme Court petition is likely, given the financial stakes on both sides.

If the split in authority holds, the issue could be attractive to the Supreme Court. It could also warrant review as an important federal issue affecting a significant industry and consumers nationwide.

Congress could also step in to either nix or allow Aereo-like service by amending the Copyright Act.

FOX’s parent company has stated publicly that it would consider making FOX a pay channel if Aereo is allowed to continue. At least one other network is hedging its bets.

In April, CBS announced that it had purchased a minority interest in Syncbak, which streams broadcast programming live to various devices, in partnership with local television stations.

If other networks follow suit and look for new options, consumers could end up winning, regardless of who wins in court.

Justice Breyer's Law Review Article Revisited

Next Thursday, November 4, George Washington University Law School will hold an event called: Justice Stephen Breyer's "The Uneasy Case for Copyright": A 40th Anniversary Symposium.

The title in quotations is a 1970 law review article written by then-Harvard professor Stephen Breyer (84 Harv. L. Rev. 281) and he will speak at the symposium.  Per an event description, "The article both articulated a theoretical framework for assessing copyright law, and conducted a study of the publishing industry to provide empirical grounds for such an assessment.  Forty years later, debate over the goals and efficacy of copyright and of other forms of intellectual property has only increased, and Justice Breyer's article continues to occupy a prominent place in that debate."  The presenters, in addition to Justice Breyer, include "distinguished legal academics and economists from the United States and abroad."

Professor Robert Brauneis (rbraun@law.gwu.edu) is listed as the contact.

Eighth Circuit: Camp and Copyright, Medieval-Style

Recently, the Eighth Circuit decided a copyright case in favor of Camp Kitaki, a YMCA summer camp in Nebraska, and its KnightQuest, a medieval-themed, interactive play that teaches campers certain values.  In the past, the camp had used Kastleland, another medieval- and value-themed interactive play, but this ended in 1998, when its author, Tom Frye, broke ties with the YMCA.  A dispute and settlement with stipulated judgment followed.  The Y agreed not to infringe the Kastleland copyright and Frye, to not enter Y property without consent.  Camp Kitaki then used a program called Jungleland. 

In 2007, the camp introduced KnightQuest, a new medieval-themed program.  Frye sued in federal district court, alleging copyright infringement and contempt related to the stipulated judgment.  The district court held in favor of the camp, finding no infringement and dismissing the case.

Upholding the lower court, the Eighth Circuit found that "Kastleland and KnightQuest are both [medieval-themed] interactive plays conducted at the same YMCA summer camp" and, in both, campers "join the characters on a quest and are guided through multiple challenges where they can acquire certain skills necessary to defeat the play's antagonists."  However, these "general idea[s] cannot form the basis for a copyright infringement claim," the panel said.  "[S]imilarities between two works that are limited to hackneyed elements" (internal quotation marks and citation omitted) do not make those works substantially similar.