Broadcasting & Cable Quotes Tom Davidson on Aereo Challenges at Copyright Office, 2nd Circuit

Akin Gump communications and information technology practice head Tom Davidson was quoted by Broadcasting & Cable for its article “Aereo: Oops! We Meant to Say Cable,” on the challenges that streaming content provider Aereo faces in convincing the U.S. Copyright Office and the 2nd Circuit Court of Appeals that it is a cable system.

In June 2014, the U.S. Supreme Court held in American Broadcasting Companies, Inc. v. Aereo, Inc. that the company publicly performs copyrighted works “within the meaning of the Transmit Clause” of the Copyright Act of 1976 and that “[b]ecause Aereo’s activities are substantially similar to those of the [community antenna television] companies…Aereo is not simply an equipment provider.”  As the article notes, Aereo is arguing to the Copyright Office that it is a cable system able to stream TV station signals online as long as it obtains a blanket copyright license.  The Copyright Office has disagreed.

According to Davidson, the Copyright Office’s preliminary decision is unsurprising given its historical position that Internet distribution does not qualify for the compulsory license.  Regarding Aereo’s claim that, in the wake of the Supreme Court’s decision, its service is analogous to cable, Davison agrees with the Copyright Office: “The Supreme Court was pretty careful in its selection of words. It did not say Aereo was cable. It said it was substantially similar. It leaves room for courts and others to analyze it as appropriate. I don't think it at all mandates or dictates a determination by the Second Circuit or change of view of the Copyright Office.”