Locast's attempt to sneak re-broadcast streaming live television under non-profit copyright exemption

Locast's Attempt to Sneak Re-broadcast Streaming Live Television Under Non-profit Copyright Exemption

Stop if you have heard this before....  A start-up company takes a television antenna (commonly referred to as an over-the-air (OTA) antenna), attaches it to an HDTV receiver, connects the receiver to a computer server, invites the public (one device at a time) to log into the server, and then streams live television from the server to the device.  Sound familiar?  Hint, Aereo tried this in the early part of the decade only to have the U.S. Supreme Court find Aereo liable for copyright infringement for unauthorized rebroadcast of the broadcasters' content.  See Supreme Court finds Aereo's Emerging Online Streaming Technology Hits Copyright Infringement Bullseye. 

Start-up company, Locast, has a new twist on streaming live television by capturing broadcasters’ television signals and streaming their content.

So what is Locast’s strategy for avoiding the same fate as Aereo and being found liable for copyright infringement?

First, let’s look at the technology that Locast is using.  Locast’s technology is basically unremarkable: a single antenna, a single receive, a single server, and multiple users.  This is completely different than Aereo’s novel and unique technology aimed at a futile attempt to avoid copyright restrictions on public performance / re-transmission of broadcasters’ content, by using a separate antenna for each transmission, and assert that the transmission is not “public” but private transmission, albeit multiple, single transmissions.

However, unlike the "for profit" company, Aereo, Locast aims low as a "non-profit" organization.  As a non-profit, Locast hopes to slide under the non-profit exemption that allows non-profit companies to “secondary transmission of broadcast programing by cable.”  17 U.S.C. § 111 (a) (5) (emphasis added).

For argument sake, let’s assume that Locast is really a non-profit and in keeping with the statutory requirements of § 111 (a)(5), it does not have direct or indirect commercial benefit or advantage in the service. 

Seems like, so far, so good for Locast.  But, wait...  Not so fast….

Subsequent to Aereo being found liable for copyright infringement for separately streaming broadcasts’ content to respective subscribers (viewers), Aereo applied for a license with the U.S. Copyright Office to be an authorized re-broadcaster/distributor or cable provider under the compulsory licensing provisions of the U.S. Copyright Act, 17 U.S.C. § 111 (§111), “secondary transmission of broadcast programing by cable.” 

The important word in the statute is “cable.”  The U.S. Copyright Office denied Aereo’s application based on a finding that Internet streaming does not meet the definition of cable under § 111.   Therefore, the Copyright Office denied Aereo's request to pay compulsory licensing fees to retransmit broadcast television signals over the Internet.  See Aereo's Online Streaming Broadcast TV Caught Between a Rock and a Hard Place.

Based on how the U.S. Copyright Office interpreted “cable” re-broadcast and streaming content to not be equivalent in the context of compulsory licensing broadcasters’ content under § 111, it looks like Locast may have a steep climb to get out of potential copyright infringement hole that it has dug.  Time will tell….

© Stephen J. Weyer 2019

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