ArtsWatch: Aereo Still Flies High

Appeals court rejects broadcasters' arguments over shut down of Internet TV service
April 08, 2013 -- 7:17 am PDT
By Philip Merrill /

In recent news ...

Aereo's Battling Antennas Survive Injunction Appeal
On April 1 the Second Circuit Court of Appeals denied broadcasters' pleas to shut down Internet TV service Aereo by preliminary injunction, affirming the district court's ruling from July 2012. The court ruled that the service's TV streams were private transmissions and not public performances as the designers of Aereo's technical architecture intended when they made sure each subscriber had their own unique antenna. National Association of Broadcasters Executive Vice President of Communications Dennis Wharton said, "NAB is disappointed with the Second Circuit's 2–1 decision allowing Aereo to continue its illegal operations while broadcasters' copyright actions are heard. We agree with Judge [Denny] Chin's vigorous dissent and, along with our members, will be evaluating the opinions and options going forward." Chin considered Aereo's technology a "sham" designed "to avoid the Copyright Act's licensing regime" and added, "Congress could not have intended such a result." Consumer advocates considered this a victory for television viewers and innovation, but anticipated that broadcasters would pursue all their options against Aereo, whether in court or in Congress.

District Court Rejects Digital Resale Arguments
The Southern District of New York's U.S. District Court rejected digital music reseller ReDigi's arguments on March 30 that its commercial marketplace was protected by fair use and the first-sale doctrine. The court granted Capitol Records' motion for summary judgment on the label's main infringement claims without resolving additional claims regarding the use of 30-second clips and album artwork. The ruling was based on a traditional view that the first-sale doctrine does not apply to digital reproduction because it involves making new copies, and the marketplace makes new commercial copies on its servers as well as on personal computers. The court observed that its ruling was a literal interpretation of the law; however, the Copyright and Technology blog noted that several issues in the ruling might be resolved differently on appeal. ReDigi has said it will appeal and is also touting improvements to its technical architecture. The parties have until April 12 to submit a joint letter addressing the case's next steps regarding open issues, including damages and "injunctive relief."

FCC's Indecency Actions Outrage Parents Television Council
On April 1 the Federal Communications Commission made several announcements regarding its handling of broadcast indecency complaints and requested public comments on whether it should focus on "egregious" profanity rather than fleeting expletives. As illustrated by the fact that Cher's 2002 fleeting expletive is still being litigated, the FCC has had difficulty processing its backlog and will instead concentrate on more serious and timely complaints for the sake of efficiency. The Parents Television Council swiftly expressed its anger that the agency had failed to zealously enforce social decency standards and that it was considering a more lax approach going forward. PTC President Tim Winter said, "While we support and encourage public input on FCC proceedings, it is a system geared to favor Washington lobbyists who have access at the FCC and their entertainment industry paymasters." That frustration is just the tip of the iceberg. Since the agency and broadcasters lack clear guidance from Congress, a court decision is the remaining path to resolve specifics. But First Amendment issues are fundamental to entertainment, and meanwhile indecency on cable programs or the Internet is unregulated.

Third Annenberg Report Adds Heat To Pirate Ad Networks And Advertisers
On March 29 the University of Southern California's Annenberg Innovation Lab released its latest survey of the most popular advertising networks that provide infringing websites with revenue and the major brands that advertise on pirate sites. The report's noteworthy advertisers include the American Heart Association and the U.S. Army. This much-needed spotlight on this issue has already shaken things up and elicited help from well-intentioned businesses that were inadvertently pulled into support for Internet content piracy.

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

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