Legal Geek No. 31: Aereo's Failed Copyright Theories and Outlook Heading into 2015

Welcome back to Legal Geek. This week, we update one of the more compelling copyright law stories of 2014, that being the ongoing saga for cordcutting pioneer Aereo against the broadcast networks in court, to see where Aereo stands heading into 2015.

https://archive.org/details/LegalGeekEp31

Back in June before Nerdtacular, this segment reviewed the Supreme Court decision that deemed that Aereo's subscription service that intercepts broadcast signals with mini antennae was copyright infringement against the networks. I deemed that Aereo would not survive in its current form in that previous segment, but has that come true?

Aereo was defiant in response to the Supreme Court decision, indicating it still had legal theories and arguments to rely upon to try and stop the broadcast networks' motion for an injunction to shut the company down. More specifically, Aereo argued that Section 111 of the copyright act would provide a compulsory license that had to be granted by the networks just like for cable TV providers protected under this Section of the copyright act.

The U.S. Copyright Office refused to recognize such a right to a compulsory license in July, so the battle went to the New York District Court judge handling the motions for injunction against Aereo. In late October, that judge ruled similarly that Aereo and other web providers are not entitled to the cable company protections of Section 111 like the right to force a compulsory license on the broadcast networks.

To put it simply, the judge ruled that even though the Supreme Court deemed that the "public performance" requirement for copyright infringement was met by Aereo's service in a similar manner as it would for cable companies, that did not mean Aereo was actually a cable company. Instead, this decision confirmed the many years of case law holding that web companies like Aereo are not entitled to all specialized cable company protections in copyright law.

And with that, Aereo's last stand failed and a preliminary injunction stands against Aereo, at least as it pertains to rebroadcasting currently-airing television shows.

Aereo is now auctioning its web television technology under bankruptcy to help pay the bills, as $95.6 million of venture capital has dried up to a mere $3.6 million due to all this litigation. Aereo clearly still thinks there is a non-copyright-infringement use of its patented technology, and reports from Engadget say that at least 17 buyers are interested. However, it is clear that Aereo itself as an entity is waving the white flag and monetizing assets in bankruptcy to have money left over to finish litigation and pay damages, if necessary.

Bottom Line: Aereo is effectively dead, as expected. The legal arguments made by Aereo were not laughable in this process, and the Supreme Court was highly divided on the grounds for shutting this entity down, but the injunction and shutdown still occurred. If companies like this want to change the laws going forward, lobbying Congress will be the better avenue for change rather than fighting precedents in court.

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