TV STREAMING


TV STREAMING: CAN LEGISLATION EVERI KEEP PACE?


As the way we watch television changes, legislation that was designed for a pre-Internet world can struggle to keep up. TB&I investigates.


T e way we watch television is changing. Where once we gathered around a box at home in time to catch our favourite programmes, the Internet is now opening up a wealth of options. Taking advantage of TV on demand means we can go online and watch what we missed on channel services such BBC iPlayer and 4oD, and the UK-based TVCatchup lets you watch (almost) live television on your computer or phone.


In the US, streaming service Aereo allows subscribers to record satellite broadcasts from their phones or tablets, watch live shows on the move and enjoy their favourite programmes on their laptop when they get home.


It’s a model that’s really catching on—from its base in New York, Aereo is rapidly expanding eastward across the US, most recently announcing it will be setting up in Miami, Houston and Dallas.


However, traditional broadcasters and rights


owners are concerned. As new platforms allow us easier access to a variety of TV shows and fi lms, how can copyright be protected?


Aereo and Cablevision


On April 1 this year Aereo celebrated a victory. In the conclusion of a case brought by a group of major US broadcasters including Fox and Disney, the US Court of Appeals for the Second Circuit decided its service does not infringe copyright.


T e channels sued Aereo at the US District Court for the Southern District of New York in March 2012, shortly aſt er the site’s


it infringed their exclusive rights to publicly perform their works.


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In the April ruling, the Second Circuit upheld the district court’s decision to refuse a preliminary injunction, adding that the broadcasters were unlikely to win the case in light of the Cablevision case, in which the same court decided the cable television company’s remotely stored recordings of


live broadcasts do not constitute public performance and are therefore non-infringing.


T e Aereo decision sparked an outcry among American rights holders, with News Corporation head Chase Carey stating he would consider taking Fox off the air and making it a cable-only pay channel.


“We won’t just sit idle and allow our content to be actively stolen,” he said in a statement following the case.


“We believe that Aereo is pirating our broadcast signal. We will continue to aggressively pursue our rights in the courts, as well as pursue all relevant political avenues, and we believe we will prevail.”


Aereo won its case in a 2-1 decision. Dissenting Judge Chin wrote in the judgment that Aereo’s technology platform is a “sham”, a “Rube Goldberg-like contrivance” engineered to take advantage of a “loophole” in copyright law.


Chin refers to the thousands of aerials Aereo uses to pick up television signals, each the size of a small coin and individually assigned to a user, so no other subscriber may access another’s recordings.


launch, claiming


On the west coast, many of the same parties were fi ghting a similar case against Aereokiller, a service that lets subscribers watch TV shows and fi lms on


Trademarks Brands and the Internet Volume 2, Issue 3


demand using a technology platform very similar to Aereo’s.


In this case, the District Court for the Central District of California sided with the plaintiff s, fi nding Aereokiller does not have the right to make public transmissions of copyrighted works. Aereokiller’s streams were deemed public performance in this case, which is currently under appeal at the US Court of Appeals for the Ninth Circuit.


An industry on its head


It’s an area with many diff erent opinions, as old laws governing new technologies are interpreted in diff erent ways.


“It's turning a whole industry on its head right now,” says Joseph Nabor, partner at Fitch, Even, Tabin & Flannery in Chicago.


“T e entire entertainment industry has been evolving and changing, and has been doing so since the 1950s,” he adds.


“Since we moved from radio to television the industry has changed and just like all of the other technology changes, they’re coming faster and faster, and the problem is whether or not the existing agreements with content providers and transmitters are going to be able to keep up with the new delivery platforms being created.”


Adam Rendle, associate at Taylor Wessing LLP in London, says that the divergence of opinion stems from diff erent interpretations of the statute, and suggests that EU courts will more likely rule that a new technology does infringe.


www.worldipreview.com


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