ArtsWatch: Lining Up Against Aereo

Copyright experts, organizations and the U.S. argue against Aereo to the Supreme Court
March 10, 2014 -- 7:35 am PDT
By Philip Merrill /

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A Who's Who Of Creativity Plead For Aereo Shutdown
Oral arguments in the case American Broadcasting Companies, Inc. v. Aereo have been set for April 22 before the U.S. Supreme Court. Friends-of-the-court briefs are filling out the docket, most notably from the U.S. government siding with broadcasters' arguments that the unlicensed Internet TV service should be shut down pending trial. In late February briefs were submitted by the Media Institute and copyright authorities Peter Menell and David Nimmer. While there are differing opinions on how much deference to give innovation and cloud services, the majority of the 16 briefs filed on March 3 argued that Aereo's individual antennas for every customer should not buy it a presumption of operating within the law. The Recording Academy joined with leading music organizations ASCAP, BMI, NMPA, RIAA, and others on a brief that stated, "The choice presented is whether to allow Aereo and others to illegitimately build businesses on the foundation of copyrighted works and thereby to compete unfairly with licensed services, or whether to uphold the purpose of the Copyright Act, to comply with obligations of the United States under international treaties, and to provide fair compensation to copyright owners and their partners in return for their creative contributions." The Copyright Alliance — which includes The Recording Academy as a member — also submitted a brief, as did international organizations led by IFPI, including CISAC, Australian Copyright Council, British Copyright Council, and the International Federation of Musicians. Other separate March 3 filings include software association BSA, NAB, NFL, SAG-AFTRA, and Viacom. Although the broadcasters continue their inconsistent position by rejecting calls to recognize a performance right in terrestrial radio, The Academy is committed to the principle that all creators should be compensated when their work is exploited.

Appeals Court Lets Actor Exit Finished Movie
On Feb. 26 the Ninth Circuit Court of Appeals ruled that the lower court erred by relying on narrow grounds to deny a preliminary injunction that a YouTube video be taken down. Rare and unusual facts caused actress Cindy Lee Garcia to be harmed by her performance being transformed and dubbed for its use in the provocative amateur film Innocence Of Muslims, resulting in this "David versus Goliath victory" and a continuing debate among copyright experts. The court's opinion said, "Garcia was duped into providing an artistic performance that was used in a way she never could have foreseen. Her unwitting and unwilling inclusion in Innocence Of Muslims led to serious threats against her life." YouTube will appeal and was later allowed to provide online access to a version of the movie that does not contain Garcia's performance. Meanwhile, the underlying lawsuit will continue to be litigated.

Dish And Disney: What A Difference Three Days Make
Dish Network and the Walt Disney Company announced a complex distribution agreement on March 3 that is attracting attention as a win-win formula to handle next-generation issues. Among its many features, the companies will withdraw from litigation over Dish's commercial-skipping AutoHop technology and Dish will disable AutoHop on Disney/ABC programming for the first three days after the original airtime. Aside from the immediate advantage this gives Disney on the advertising side, the parties will explore new advertising models including dynamic ad insertion and mobile Internet strategies. Disney Media Networks Co-Chair and Disney/ABC Television Group President Anne Sweeney said, "After months of hard work and out-of-the box thinking on both sides … [n]ot only were innovative business solutions reached on complicated current issues, we also planned for the evolution of our industry." First ripples from the agreement include its influence on DirecTV's negotiations with Disney and also statements from CBS looking forward to negotiating its next distribution deal with Dish.

Copyright Office Solicits Comments On Digital Distribution Rights
April 4 is the deadline for comments to the Copyright Office regarding the rights of "making available" and "communication to the public," especially in the digital environment. These international rights are considered to be part of U.S. law without being spelled out in the statutes, but courts have found it difficult to apply them consistently. This study was requested in December 2013 by Rep. Mel Watt (D-N.C.) before he was appointed director of the Federal Housing Finance Agency. The Copyright Office will also host a public roundtable on May 5 to further explore how these rights are currently protected at home and abroad, and whether the U.S. Copyright Act should be amended to improve their domestic protection.

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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