Earlier this year, we reported on a suit filed against Aereo, Inc. for illegally streaming Plaintiff broadcasters’ live programming, television series, movies, and non-commercial and educational programs to Aereo paying subscribers. After a judge for the Second District of New York denied a motion for a preliminary injunction to shut down Aereo’s service while the case is being reviewed, the broadcasters challenged the decision in the Second Circuit Federal Appeals Court. In its defense, Aereo relied on precedent set forth in the famous Cablevision case regarding time-shifting broadcast cable; however, Cablevision recently aligned itself with the broadcasters’ efforts to challenge the decision by distinguishing its victory from the service Aereo provides. Amicus briefs have now been filed by the Plaintiff networks and many members of the Copyright Alliance on behalf of the Plaintiff networks. Below you can find a list of the member organizations and links to the full text of each filed amicus brief in the Aerero appeal.
Representing the independent network plaintiffs, including subsidiaries of Alliance member News Corporation, Legal Advisory Board member Jenner & Block drafted an amicus brief that focuses on the three following issues:
1. Whether the district court erred in finding that because viewers can lawfully access broadcast television on mobile Internet devices using equipment available for purchase, Aereo’s unlicensed Internet retransmission service is non-infringing;
2. Whether the district court erred in holding that because Aereo’s system uses hundreds of antennas and unique intermediate copies to make the same broadcast programs available to any or all of its paying subscribers – albeit through “individual” transmissions – Aereo does not publicly perform the programming; and
3. Whether the district court erred in holding that, under that decision, Aereo – which has no license to retransmit whatsoever – is immune from copyright liability for its unauthorized. retransmissions of copyrighted broadcast programming simply because it routes the retransmissions to its subscribers through “unique” intermediate copies.
Click here for the full text of the brief.
Representing the large network plaintiffs, including Alliance members CBS Corporation, The Walt Disney Company, and NBC Universal, law firm Debevoise & Plimpton LLP filed an amicus brief arguing that Aereo’s Cablevision defense was contrived solely to exploit what it believes to be a loophole in the public performance right. Click here for the full text.
Representing hundreds of thousands of songwriters, composers, music publishers, recording artists, and records labels, Alliance members ASCAP, Broadcast Music, Inc., Association of Independent Music Publishers, National Music Publishers’ Association, Church Music Publishers Association, Recording Industry Association of America, The Recording Academy, and SESAC filed a brief drafted by Legal Advisory Board member Mitchell Silberberg & Knupp LLP. In sum, their brief raises the issue that “The district court’s decision will harm Amici’s members by sharply reducing the scope of the public performance right for retransmission of music or television programs containing music, especially through the Internet, and invite other services to market ‘user storage based’ services designed to evade the public performance right.” Click here for the full text of the brief.
Representing professional sports programming, many U.S. professional sports leagues, including Alliance member NBA Properties, filed a brief drafted by Legal Advisory Board member Arnold & Porter. In their brief, the sports leagues explain how unauthorized offering of the sports leagues’ programming over the internet by Aereo and other copy-and- play services will undermine the value of the sports leagues’ internet rights. Click here for the full text of the brief.
Former U.S. Register of Copyrights Ralph Oman also filed a brief on his own behalf to ensure “that the purpose of several provisions of the Copyright Act, including those with which I had direct involvement in my capacity as Chief Minority Counsel and Register, are explained and put in their proper context for purposes of [the Aereo appeal].” Click here for the full text of the brief.