March 4, 2014
Mediapost quotes the Justice Department's filing siding with the broadcasters' argument that Aereo is infringing on their copyright by saying:
“Because [Aereo's] system transmits the same underlying performances to numerous subscribers, the system is clearly infringing…. Although each transmission is ultimately sent only to a single individual, those transmissions are available to any member of the public who is willing to pay the monthly fee.”
“A consumer’s playback of her own lawfully acquired copy of a copyrighted work to herself will ordinarily be a non-infringing private performance, and it may be protected by fair-use principles as well.”
As I've said before, I'm no lawyer, but I'm having trouble following this line of reasoning. This core issue is whether the Aereo stream is a "lawfully acquired copy of a copyrighted work," but if I put an antenna on my house, I lawfully acquire the content in question. This doesn't explain why a single-subscriber antenna in a data center doesn't lawfully acquire the content.
If it hinges on multiple people paying to view the same underlying performance, why didn't Sony lose the Betamax case, since the VCR made the same underlying performances available to anyone who paid the amount to buy the device? What if Aereo changed its model from a monthly fee to purchasing an antenna, and maybe a tiered monthly fee for different amounts of storage?
Then while the DOJ acknowledges that each transmission is sent to a single individual, it is still an infringement because "those transmissions are available to any member of the public who is willing to pay the monthly fee." Actually, no, they are not. The "transmissions" that are my legal copy of the content are not available to anyone else — that's the whole point of Aereo's rather cumbersome (but legally necessary) architecture.
I will continue to ponder these legal nuances in anticipation of the April 22 arguing of the case.
Are any of my readers legal eagles who can help me divide the Aereo baby here?