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Intellectual Property

Rights holders closely watching online TV streaming fight

Broadcast rights holders on both sides of the border are keeping a close eye on an ongoing battle between an online TV streaming service and the big networks, as the case heads to the U.S. Supreme Court, says Toronto lawyer Kevin Fisher.

While both the New York Federal Court of Appeals and the U.S. District Court in Massachusetts refused an injunction request by a number of TV stations to block the Aereo Internet-based TV streaming service last year, Fisher, litigation partner with Basman Smith LLP, says there have been conflicting decisions in other circuit courts in the United States relating to the injunction, in cases involving Aereo and asimilar service.

Although the New York court ruled that Aereo – which allows subscribers to watch local channels through the Internet and on mobile devices through a number of tiny antennas – does not violate copyright laws, last month, the U.S. District Court in Utah granted the broadcasters’ request for a preliminary injunction against Aereo, according to the Los Angeles Times.

Last September, a Washington judge also issued an injunction against an Aereo competitor in The Fox Television Stations Inc. v. FilmOn X LLC. In that case, the court ruled that “the Copyright Act forbids FilmOn X from retransmitting plaintiffs’ copyrighted programs over the Internet.”

Although the law is not completely settled yet, says Fisher, Aereo has been rolling out its service in a number of U.S. cities.

On March 3, the Canadian Media Production Association (CMPA), a lobby group for Music Canada, the Society of Music Composers, Authors and Music Publisher of Canada (SOCAN), ACTRA and other similar Canadian professional organizations filed an amicus brief to the U.S. Supreme Court aligning with their U.S. counterparts.

Fisher says there are a number of big players that take issue with how Aereo works, including in relation to over the air sports broadcasting rights.

“Sports, particularly in the U.S., are available on a number of over-the-air channels – broadcast on CBS, NBC and Fox. And those are digital signals too which are popular content for mobile use which often relate to separate contracts for  mobile rights.

“The NFL, for instance, has an agreement with Verizon, for which the NFL presumably receives a significant amount of money to have access to live NFL games for people using Verizon mobile phones or on iPads. Different broadcasters and rights holders often sell these rights separately. The Aereo service would provide a means to  allow people access to those over-the-air channels on whatever device they want to use, like a mobile phone or iPad. It’s brewing for an interesting battle.

“Many of my clients are commercial rights holders, but they also hold residential rights in the U.S. too – mostly for specialty TV channels, including specialty sports – so they’re watching,” says Fisher.

The broadcasters’ appeal of the New York Federal Court of Appeal’s ruling in the case will be heard before the U.S. Supreme Court next month.

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