The Future of Online Streaming: Aereo, FilmOn, and “Public” Performances
Once the prime vehicle of audiovisual media consumption, television has, in recent years, seen its role marginalized. With the advent of popular online streaming services, paying for a television subscription—or even owning a television—is no longer necessary to keep up with the most popular shows. But even as streaming subscribers grow and cable and satellite television subscribers dwindle, TV remains on top.
Meanwhile, those without access to “traditional television” may occasionally face the conundrum of being unable to watch programming as it is broadcast—a problem relevant, for example, to telecasts of sporting events. Historically, streamers might take one of several options: they could watch the program somewhere else; they could stream the program through the broadcasting network’s website, subject to its availability; or they could head for the seedier realm of the internet, where live TV streams are outnumbered only by the swarms of pop-up ads that quickly engulf them.
A new solution may emerge: paid (legitimate) streaming services that offer live TV. Aereo is a New York-based company that, since February of 2012, has offered such a service, in addition to digital video recording (DVR) storage. Besides offering live streams, Aereo is distinguishable from its streaming predecessors in one very significant way: the company does not pay for its content. Unsurprisingly, Aereo has since become embroiled in a legal battle with major broadcasting networks that claim its service has infringed on their copyright in broadcast television programs.
The networks’ challenge of Aereo’s service relies on a right granted by copyright to perform the copyrighted work publicly. The same right was implicated by a 2008 Second Circuit case dealing with network DVR technology. Critical to the Second Circuit’s holding that the use of such technology does not violate the public performance right was the fact that Cablevision, the DVR service provider, transmitted each particular recording only to an individual subscriber and therefore the transmission was not “public.” Aereo’s service seems designed with this ruling in mind: the company “leases” thousands of television antennas to its subscribers, with each subscriber being matched to one particular antenna. The Second Circuit relied on its earlier precedent twice—once in a panel, and once en banc—to find Aereo’s technology non-infringing.
Decisions in other parts of the country have made the issue more complicated. In both the Central District of California and the D.C. District, an Aereo competitor now known as FilmOn lost legal challenges, despite operating their service with individual antennas just as Aereo does. Both courts relied on an interpretation of what constitutes a “public performance” that is irreconcilable with the Second Circuit’s.
Both FilmOn cases are on appeal, meaning that a circuit split could be in the near future. However, the networks have petitioned for certiorari in the Aereo case, and Aereo has recently stated that they would welcome the opportunity to have their case heard by the Supreme Court. In their response brief, Aereo draws attention to the fact that when networks lose in one jurisdiction, they file in another. Conversely, Aereo and FilmOn will face uncertainty as they expand into new, yet-to-be-litigated markets; the D.C. District’s injunction against FilmOn purports to apply everywhere in the nation other than in the Second Circuit. Without firm Supreme Court precedent, piecemeal litigation is almost certain to develop.
Copyright exists in the United States as a delicate balance between what is good for the owner of a copyright and what is good for the public. Allowing Aereo to enter the marketplace and compete with broadcasters has obvious public benefit: it increases consumer choice in the broadcast television market. On the other side of the issue, the value of a broadcast is compromised when it may be viewed without the broadcaster’s authorization. Any decision made will have major implications for the future of Aereo’s technology as well as television as a whole. Both the National Football League and Major League Baseball have said that ruling in favor of Aereo could lead to the end of games on broadcast television. At one point, News Corporation threatened to stop broadcasting the Fox television network. Whether these threats are credible or not, they certainly demonstrate that a decision in Aereo’s favor would profoundly reshape the television landscape, with one extreme being the end of broadcast television.
Maybe it’s not a bad time to renew that Netflix subscription.
Eric Holmes is a J.D. candidate, ’15, at the NYU School of Law.