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Aereo's Cable Status Denied by Copyright Office

Who decides what makes a cable company?

In the latest twist to the Aereo Inc. story, the US Copyright Office has stated its opinion that the streaming video startup doesn't qualify as a cable enterprise. According to a letter from the Copyright Office obtained by CNBC, officials told Aereo that "in the view of the Copyright Office, Internet retransmissions of broadcast television fall outside the scope of the Section 111 license."

After Aereo lost its Supreme Court case last month against broadcasters, the company announced it was seeking a copyright statutory license that would give it the right to negotiate retransmission fees like a cable operator. Although Aereo previously argued against the idea that it should be considered a cable company, executives did a U-turn when the Supreme Court ruled that Aereo "is for all practical purposes a traditional cable system." (See Supreme Court Halts Aereo's Flight and Is This Aereo's Back-Up Plan?)

Aereo declined to comment on the letter from the Copyright Office, but that may be because the company is still waiting on a lower court ruling on whether it should be allowed a Section 111 compulsory license. In the meantime, the Copyright Office has said it would hold on to Aereo's filing while waiting for a court decision.

Separately, the Copyright Office asked for public comment last week on how the Supreme Court's ruling on Aereo affects existing copyright law. The request is part of a larger study by the Copyright Office on "the state of US law recognizing and protecting 'making available' and 'communication to the public' rights for copyright holders." The comment period is open until August 14.

— Mari Silbey, special to Light Reading

smkinoshita 7/18/2014 | 11:01:51 AM
Re: Understanding the Facts and Law I wouldn't be surprised either, but the problems with lobbying complicates things and is a separate problem in itself.
kq4ym 7/18/2014 | 9:40:10 AM
Re: Understanding the Facts and Law Unfortunately, the current law generally is going to favor the existing firms, and those folks aren't going to like changing the law to allow competitors in their marketplace. Those very laws may have in fact been written by the industry's lobbyists. How to get the added flexibility to alkow new technology into the marketplace under existing laws that favor a few firms might not be easy.
smkinoshita 7/17/2014 | 8:54:52 PM
Re: Understanding the Facts and Law The fact that all this is happening really just demonstrates how terribly inadequate the current laws really are.  I know it's been said time and time again but the laws aren't be updated at an adequate pace, either.  
seffros 7/17/2014 | 4:00:39 PM
Understanding the Facts and Law A few things need clarification; the Supreme Court said the service Aereo offered is akin to cable. It did not say Aereo was a cable system. Uber offers a service that for all practical purposes is the same as a cab company, but it is not a cab company. The Supreme Court said that the type of service, in the way Aereo offered it, was subject to copyright. It did not say that Aereo fell under the very narrow definitions of the companies Congress gave a special exception to under the Copyright Law (Section 111) for a "compulsory license." The Copyright Office has said repeatedly that it does not believe Internet delivery of video falls under the narrow reasoning of the Section 111 exception.  Finally, retransmission consent has nothing to do with the Copyright Act. It is part of the Communications Act and relates to the definition of "MVPD" or multichannel video program distributor.  If you're declared an MVPD you have to get retransmission consent.  Aereo apparently still doesn't really want to pay for retransmission consent, so it appears they plan to argue that they are a "cable system" for the purposes of the Copyright Act but are not a "cable system" for the purposes of the Communications Act! This "Plan B" gambit won't work any better than "Plan A" did.
Mitch Wagner 7/17/2014 | 1:51:01 PM
Ridiculous This is ridiculous. How can the courts rule that that Aero both is and is not a cable company -- subject to all the drawbacks of being a cable company but none of the benefits. 
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