As people look for more and more ways to control their consumption of broadcast television, new avenues open up for companies that do not create their own content. One such avenue, TV-over-internet, capitalizes on free, over-the-air television by capturing and relaying it to users over the internet. This provides users with more control over how and when they access and view broadcast television. One of the premier startups utilizing this technology, Aereo, has flourished so far, and it continues to expand its service coverage.

However, Aereo has not received much enthusiasm from traditional broadcasting companies, who have challenged the legality of its services under copyright law in an attempt to capture retransmission fees usually paid by cable companies. Should Aereo and other TV-over-internet startups be required to pay retransmission fees for relaying over-the-air television broadcasts that are free to its users in the first place?

To date, these copyright challenges have been unsuccessful, as Aereo has been able to successfully argue that by providing each of its users a separate miniature antenna for capturing over-the-air broadcasts, it was effectively creating many “remote TVs.” Their argument relies in part on Cablevision, a 2008 ruling which held that copyright was not infringed when a distributor effectively created a “remote DVR” by providing DVR hardware in a remote location since users were in control of which programs were recorded and accessed, and the system stored separate copies of recorded programs for each user. On appeal, the Second Circuit declined to take the case en banc.

However, a recent ruling from the D.C. District Court against FilmOn, another TV-over-internet startup, may create more trouble for Aereo. The ruling granted a preliminary injunction preventing FilmOn from retransmitting several broadcasters’ copyrighted programs over the internet across the country. Though not binding on Aereo, it has provided broadcasters with legal ammunition to further challenge Aereo and other TV-over-internet service providers. The D.C. ruling already spurred a new filing in a current suit against Aereo in Boston, which may eventually lead to a decision from the First Circuit.

The future of TV-over-internet providers is up in the air and may lead to a circuit split, with the Second Circuit’s Aereo decision, FilmOn’s pending appeal in the 9th Circuit, and potential appeals in both the D.C. Circuit and the First Circuit.

–Brenan Salgado

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