Copyright Office says Aereo is not a cable company

Steven Loeb · July 17, 2014 · Short URL:

Aereo can't operate because Supreme Court says it's a cable company, Copyright Office says its not

Aereo simply cannot catch a break. After losing its case in front of the Supreme Court because it was deemed to be too similar to a cable company, Aereo took that thread and ran with it, embracing that status and asking for the same privileges that other cable companies get.

Now its being told that, no, it isn't a cable company after all. Honestly, if I were Aereo, I'd be kind of pissed right now.

U.S. copyright officials wrote a letter to Aereo on Wednesday, in which they informed the company that they do not consider it to be a cable company, as its "internet retransmissions of broadcast television fall outside the scope of the Section 111 license." 

It should be noted that the Copyright Office also wrote that would not refuse Aereo’s filings to get a cable license completely, but would accept it provisionally, since the case is still being reviewed by the courts, and the Office is not looking to step on anyone's toes.

It seems clear, however, that Aereo's plans to throw the Supreme Court's rulings back in the face of the broadcast networks that sued them has failed, and that if the Copyright Office were to rule, it would almost certainly rule against Aereo. 

"Aereo should be aware that, depending upon further regulatory or judicial developments, and/or based upon the Office's own further review of this issue, the Office may subsequently determine that it is appropriate to take definitive action on Aereo's filings, which could include rejection of the statements."

VatorNews reached out to Aereo, but the company declined to comment.

When the Supreme Court ruled against Aereo in late June, Justice Stephen Breyer wrote in the majority opinion that the Court simply did not see enough of a difference between Aereo and a traditional cable company to justify Aereo's use of copyrighted material.

Aereo maintained that its service differed from cable companies in one key way: while cable companies are constantly streaming, Aereo remains "inert" until the user decides to use it. Breyer did acknowledge this difference, but ultimately saw too many similarities.

"Given Aereo’s overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here," Breyer wrote. And because of those similarities, the Court found that "Aereo is not simply an equipment provider."

In response to that ruling, Aereo filed a letter with a New York district court last week stating that, yes, it is in fact a cable provider, and is, therefore, entitled to a statutory license. That would then protect Aereo from any court injunctions, which it now facing, though no injunction has yet been handed down.

And now the Copyright Office has all but said that that claim is false. 

So, just to briefly recap, Aereo can't operate because it's too close to being a cable company... and because its also not close enough to being a cable company. That's some logic right there!

So, does this mean the death of Aereo? Actually no. It only likely means the end of one of Aereo’s service: the remote mini-antenna that users rented to watch TV. The other part of the service is a DVR/cloud storage service that stores recorded shows, and lets users watch them later.

Aereo has argued that the Supreme Court ruling does not apply to its DVR service. 

In the letter it sent to the court, Aereo stated that even if it was ruled that the company did not quality for the cable company license, it should still have right to play back broadcasts as long as they are not at a later time they are being shown on the cable networks.

"If the Court finds Section 111 inapplicable and determines that it should enter a preliminary injunction, that injunction must be limited to the conduct that the Supreme Court carved out from Cablevision's general rule: the simultaneous or near-simultaneous streaming of over-the-air television programs. The Supreme Court opinion did nothing to prohibit - and indeed reaffirms the vitality of - non-simultaneous playback from copies created by consumers."

Keeping its DVR service alive might very well be Aereo's only chance at survival right now.

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