The battle over services that record and stream over-the-air TV without compensation to TV broadcasters has become even more confusing, with a US District Court judge in Boston denying an injunction to stop the Aereo service in Massachusetts in a suit brought by Hearst Corporation, which owns a local TV station. This decision comes on the heels of a decision the decision by the US District Court in Washington DC finding that Aereo-like service FilmOn X was violating the copyrights of TV stations by operating a similar service in the DC area (see our discussion of that decision here). Joining decisions in NY favoring the streaming services (a decision we initially wrote about here), and one is California favoring broadcasters, the decision appears to be headed to an ultimate resolution before the Supreme Court to reflect these conflicting points of view. In fact, TV broadcasters have already announced the likelihood of their filing a Supreme Court petition asking the Court to resolve the matter. 

Of course, the decisions outside of NY have been by District Courts, not US Appeals Courts. All except the NY decision are subject to review by the US Court of Appeals in the Circuits in which these District Courts lie. It is possible that the appeals could come out differently than the decisions by the District Courts, and either increase or decrease the likelihood of Supreme Court review, depending on whether the other appellate courts rule for Aereo or FilmOn X (decreasing the likelihood of Supreme Court review if the Circuits agree on the outcome) or against it (increasing the likelihood of review as the Court would be faced with conflicts among the circuits which is a usual ground for Supreme Court review). The Boston decision, while not as comprehensive as some of the other decisions on the topic, does raise some interesting issues that will no doubt be considered on appeal.


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The US District Court in Washington DC issued a decision earlier this month, enjoining the operation of the television streaming service FilmOn X throughout the United States – except within the Second Circuit (covering NY) where the US Court of Appeals reached a contrary decision in connection with Aereo – a very similar service. Both of these services utilize multiple small antennas to receive over-the-air television programs, which are recorded on a central server and sent over the Internet on demand to individual viewers. In effect, these viewers, by paying the subscription fee charged by the services, get their television programming on the Internet – through their computers and soon to their mobile devices.  The contrary decisions in these two cases illustrate a fundamental disagreement between two courts as to the meaning of the "public performance" right enjoyed by copyright holders in their copyrighted works.

As we wrote here, the Second Circuit, in the Aereo case, determined that, as the transmission of the over-the-air programming was done on an individual basis, at the demand of the individual viewer, it was not a “public performance.” In the Second Circuit’s opinion, the fact that the transmission is made to a single user, either when the program is aired or on a delayed basis, made each individual performance of the television program a "private performance," which did not infringe on the rights of the copyright holders, and more than a transmission of a signal from an antenna on someone’s roof to the television set in the living room was a public performance.  The DC Court disagreed with that interpretation, joining a District Court in California in deciding that this type of service, without the permission of the broadcaster, is a violation of the copyright laws.

The DC Court was very thorough in its review of the issue and its basis for disagreeing with the Second Circuit (or agreeing with the dissenting opinion in the Second Circuit). The issue raised in the FilmOn X case, whether the retransmission over the Internet of the over-the-air television signal of a broadcaster is essentially the same issue raised 40 years ago when cable television operators first started to operate, charging customers for bring them television signals from over-the-air TV stations. After the Supreme Court at that time, in the Fortnightly and Telepromter cases, agreed with cable operators that their retransmissions of television stations did not constitute a "public performance" of those signals, Congress intervened in 1976, revising the Copyright Act to make clear that such retransmissions of broadcast signals were in fact covered by the Act. The changes adopted then, which are still in place in the Copyright Act, were cited by the DC Court in finding that the operations of FilmOn X indeed violated the copyright holders public performance rights under the Copyright Act.


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We’ve written extensively about copyright issues for audio services, but the big copyright decision that recently made headlines is a TV issue, though one that could have an impact on audio as well. That was the Second Circuit decision in the Aereo case – upholding a lower court decision allowing a company to retransmit over-the-air TV signals to consumers over the Internet – without any royalties to the TV broadcasters or television program producers. The decision looked at the issue of what defines a “public performance” that would require the consent of the copyright owner. The Court found that there is no public performance of television programming where the service is set up so that the programming is streamed to the viewer individually, at their demand, rather than transmitted all at once to multiple consumers – as by a cable system or a  satellite television service. The decision is a controversial one – decided by a 2 to 1 vote with the dissenting judge issuing a strong dissent arguing that the Aereo service was nothing more than a “sham” designed to evade the royalty obligations or copyright permissions that would be necessary if the service were deemed a cable system or other type of multichannel video provider. What does this decision really mean for television stations, and could it have broader implications for the reuse of all sorts of broadcast content on the Internet?

The decision focused on the question of whether the Aereo service “publicly performs” the programming that it sends to its subscribers. Under the Copyright Act, a copyright owner has a bundle of rights which it has the exclusive ability to exploit. This includes the right to copy the copyrighted work, to distribute it, to make a “derivative work” (a work that uses the copyrighted material and changes it in some way – like putting new words to the melody of a copyrighted song), and the right to publicly perform it. The definition of a public performance includes any transmission or retransmission of a performance to multiple individuals at the same time or at different times. This language was added to the Copyright Act at the time of the advent of cable television, to make clear that services like cable, that take an existing performance (like that of a broadcast television station) and then further transmit it to other people (even people who could theoretically pick up the original performance) were themselves making a public performance that needed the consent of the copyright holder or a government-imposed statutory license (which allows the performance as long as the party making the performance pays the copyright holder an amount set by the government). From a cursory look, it would appear that Aereo is retransmitting the signal of the TV station to all of its customers. Why, then, did the Court rule that no public performance was involved?


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April is one of those months in which many FCC obligations are triggered for broadcasters. There are the normal obligations, like the Quarterly Issues Programs lists, that need to be in the public file of all broadcast stations, radio and TV, commercial and noncommercial, by April 10. Quarterly Children’s television reports are due to be submitted by TV stations. And there are renewal obligations for stations in many states, as well as EEO Public File Reports that are due to be placed in station’s public files and on their websites. The end of March also brings the obligation for television broadcasters to start captioning live and near-live programming that is captioned on air, and then rebroadcast on the Internet. Finally, there are comment deadlines on the FCC’s proposal to relax the foreign ownership limits, and an FM auction and continuing FM translator filing requirements.

Radio stations in Texas and television stations in Tennessee, Kentucky and Indiana have renewal applications due on April 1. The license renewal pre-filing broadcast announcements for radio stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming, and for TV stations in Michigan and Ohio, must begin on April 1. All of these stations will be filing their renewals by June 1. EEO Annual Public file reports for all stations (radio and TV) with five or more full-time employees, which are located in Texas, Tennessee, Kentucky, Delaware, Pennsylvania or Indiana, must be placed in their public files (which are now online for TV broadcasters) by April 1.   Noncommercial radio stations in Texas, and noncommercial TV stations in Tennessee, Indiana Delaware, Pennsylvania, and Kentucky must also file their Biennial Ownership Reports by April 1


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October is a very important month in the regulatory world, and broadcasters need to be aware of the regulatory deadlines that have already arisen this month, or which will come up in the next few days. This week, TV Newscheck published our latest summary of the state of many of the most significant legal issues facing TV broadcasters at the FCC and in Congress. In looking at the list, it is clear that this month is particularly important for broadcasters. For instance, this is the month that most TV stations outside of the Top 50 markets will first have to deal with the online public file – having to post their Quarterly Issues Programs Lists and Children’s Television reports on their sites. The FCC this week issued a Public Notice of increased functionality of the online public file, partially to handle these obligations. Of course, radio stations also need to have their Quarterly Issues Programs Lists in their paper public file this week – as the lack of these lists is source of many of the fines that are issued during the license renewal process.

Also this month is the start of the obligation for Internet captioning of any programming that had previously aired with captions on TV. The obligation applies to any full TV program that was captioned when broadcast over-the-air after September 30 and is then posted in full on the Internet. The FCC just issued a reminder about this obligation, emphasizing its importance.


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As we wrote last month, the Commission has asked for public comment on whether an Internet delivered video programming service can qualify under the FCC rules and the Communications Act to be treated as a multichannel video programming distributor (an "MVPD").  While the FCC has in the past determined that an MVPD needs to have

As technology changes, the definitions in the FCC rules don’t always keep up.  In a public notice released last Friday, the FCC asked for public comment on what its definition of an "MVPD" – Multichannel Video Programming Distributor – means for purposes of its program access rules. These rules limit exclusive contracts for certain programming that

We recently wrote about the FCC’s new rules requiring the captioning of television video retransmitted on the Internet.  Those rules have now been published in the Federal Register, which sets the effective dates for the implementation of those rules.  The rules become effective on April 30, which means that any video that is broadcast

As we reported last week, the FCC has adopted a Report and Order establishing rules for the closed captioning of video programming delivered via Internet protocol (i.e., IP video), as required by the 21st Century Communications and Video Accessibility Act (CVAA). DWT has now released an advisory with further details about the new

This afternoon, the FCC released its long-anticipated Report and Order (R&O) setting forth the Commission’s new closed captioning rules for IP-delivered video programming, pursuant to the 21st Century Communications and Video Accessibility Act (CVAA). 

As we explained when the rules were first proposed in September, the CVAA directed the FCC to establish how and when certain