Michael Ford (post until Oct. 31/19)
Intellectual Property

Networks win TV-streaming battle, but debate continues

The U.S. Supreme Court’s recent ruling against an online TV streaming service is a win for the big networks, but could spark debate about its potential impact on innovation, says Toronto lawyer Kevin Fisher.

In a 6-3 decision, the court ruled that Aereo —which allows subscribers to watch local channels through the Internet and on mobile devices through a number of tiny antennas – is violating copyright laws, reports the New York Times.

“It’s a huge decision that is sure to be debated for some time to come as to whether the court got it right or not. There are many in the tech community who believe that this decision stifles innovation and is a setback for the consumer. They will find themselves in the strange position of agreeing with Justice Scalia and his dissent. There will also be a question as to how this decision might affect cloud storage providers,” says Fisher, litigation partner with Basman Smith LLP.

However, says Fisher, the TV industry is breathing a huge sigh of relief.

“The industry is facing many battles as a result of changes in technology and Aereo represented one of the biggest. The court determined that Aereo’s unique technology of individual antennae for each subscriber to provide access to over-the-air TV signals, which the subscriber could then access through a DVR directly or through a mobile device, was not distinguishable from cable systems when looked at from Aereo’s behind-the-scenes processes.

“As such, the court determined that the service was providing a public performance of copyrighted works that would be subject to copyright law. The court appeared to take a historical analysis in looking at the 1976 Copyright Act and the overall impact of Aereo as a whole, rather than of the actual technology in place as applied to the provisions of the current statute to reach its decision.”

The Supreme Court’s analysis, says Fisher, differs from the earlier circuit court decision and Circuit Court of Appeals decision which denied TV broadcasters the injunction they were seeking against Aereo. The injunction, he says, will now likely be granted to shut down the service.

“A similar fate is expected for the variations of the Aereo service that popped up across the U.S. and Canada,” he adds.

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