15 October, 2013

Streaming TV Does Not Violate Copyright

In a time when services like Netflix and Hulu are showing the cable companies what's what through convenience, choice and pricing, one would imagine there would be no need for people to stream content outside of a wide array of services enabling you to watch almost what ever you want, when ever you want. This however, is a reality, and access to content is still tough for some either due to monetary or because of regional restrictions.

A website, Aereo, operates by receiving TV signals and then converting them into a different format, allowing subscribers to watch TV shows on-demand through their service via the Internet for a subscription fee. In this manner, the service is much alike Netflix; however allowing you to watch recently aired shows as opposed to entire seasons once on offer via Netflix. Aereo does allow you to watch live TV as well as programs which have been recorded once they have aired. Two media companies, Hearst Stations and WCVB-TV, objected to this and sued Aereo for copyright infringement.

In a recent ruling, the District Court of Massachusetts had to decide whether Aereo's activities would indeed infringe copyright under section 106; more specifically the ability to perform (i.e. transmit) the copyrighted content publicly. The Court in its assessment had to determine whether the service would be a remote recording service, much akin to a DVR in a home, drawing from the case of Cartoon Network v CSC Holdings (Cablevision), where a remote DVR service was seen to not infringe copyright as the recorded programs was not deemed a 'public performance'.

Some love streaming TV a 'bit' too much
Clearly one can draw also from the US view of fair use, more specifically time shifting, where a viewer can record a show to view on a later date and that act would not infringe copyright. Much like the case of Sony Corporation of America v Universal City Studios, the user selects which programs it would like to record on Aereo, therefore arguably time shifting the content they wish to view. The case at hand however did not touch upon this fact. Hearst was also unable to show irreparable harm resulting from Aereo's service, only citing the possibility of harm through the possible loss of cable subscribers and their bargaining position when dealing with cable companies; an argument which was rejected by Justice Gordon, stating that it would "...take several years to materialize".

The Court did consider other factors, but these remain the most relevant. In concluding the Court saw that Aereo did not infringe copyright through their service, although different courts in the US have seen this to be different. The plaintiffs have since sought the right of appeal from the US Supreme Court, attempting to have them finally decide this issue, due to other services like Aereo having been shut down in New York and California. The Supreme Court, should they choose to take the case on, would have to decide "...whether the performance of their copyrighted programming via Aereo is "public" and therefore prohibited by the copyright law, or if Aereo is engaged in tens of thousands of "private" performances to paying strangers".

Source: Gigaom

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