After the Supreme Court ruled in favor of broadcasters last month, Aereo set out on a new legal strategy. The majority of the justices concluded that because Aereo was “substantially similar” to a cable company, it fell within the scope of the 1976 Copyright Act that targets multichannel distributors.
So Aereo has sought to do what cable companies do: Obtain a statutory license that allows them to transmit broadcast stations, as long as they pay royalties.
But the Copyright Office has rejected that approach, concluding that “internet transmissions fall outside the scope” of the statutory license. In a letter to Aereo, the office’s general counsel, Jacqueline Charlesworth, cited a 2012 2nd Circuit Court of Appeals case that rejected a similar attempt by streaming service Ivi to obtain a statutory license, noting that such licenses are meant to encompass “localized retransmission services” that are “regulated as cable systems by the FCC.” She added that “we don’t see anything” from the Supreme Court’s recent decision “that would alter this conclusion.”
The FCC has taken comments on a proposal to classify Internet transmissions like a cable system, but the proposal hasn’t moved forward.
Update: To make clear, what the Copyright Office is doing is not processing Aereo’s filings because of their belief that the company does not qualify for the license. In her letter, Charlesworth writes that they are accepting Aereo’s filings on a “provisional basis” because Aereo is pursuing the issue in the 2nd Circuit. “Aereo should be aware that, depending upon further review of the 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.”
Aereo declined comment. The letter from the Copyright Office is here.