We previously reported on the Supreme Court’s recent decision on June 25, 2014 that Aereo, Inc.’s internet television service infringed the copyright of the programs being transmitted by the service. In holding that Aereo was doing more than simply providing antenna access to its customers, Justice Breyer identified “Aereo’s overwhelming likeness to the cable companies” that are subject to regulation under the 1976 Copyright Act. Following the opinion, Aereo suspended its service temporarily, but saw in Justice Breyer’s language a potential silver lining in an otherwise grim cloud.
On July 9, 2014, in a letter to the Southern District of New York, to which the matter is being remanded, Aereo announced that, if it was going to bear the burdens of a cable company, it should also enjoy the benefits. As a cable company, Aereo argued that it was entitled to take a compulsory license under 17 U.S.C. § 111, which would prevent the issuance of an injunction against its operations. Aereo then proceeded to tender statements of account with the Copyright Office, thus requesting treatment as a cable company consistent with the Section 111 license.
But Aereo’s silver lining faded fast. In a letter dated July 16, 2014, Copyright Office General Counsel Jacqueline Charlesworth stated her office’s view, in reliance on Second Circuit precedent, that “internet retransmissions of broadcast television fall outside the scope of the Section 111 license.” Nevertheless, the Copyright Office provisionally accepted Aereo’s filings pending further developments in the court proceedings.
The Copyright Office’s letter is available here. The District Court has yet to rule on the issue.