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TV scraper Aereo pulled off air in six US states after tellyco court injunction victory

Weasel words butter no parsnips with Judge Kimball

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TV retransmitter Aereo, which created its business hoping to weasel around a loophole in the law, has been banned in six US states after a judge granted a preliminary injunction that bans it from operating in them.

Aereo provided each subscriber with access to a tiny antenna in the cloud, deploying thousands of these antennas to capture TV signals.

Crucially, Aereo operated using a legal loophole granted in favour another company some years ago, which – it claimed – meant it didn't need to pay TV stations for the content it retransmitted. It's that loophole which is at the heart of the legal battle.

Responding to the somewhat inevitable litigation from the TV companies, Aereo argued that the 'Transmit Clause' of the 1976 Copyright Act - which requires cable companies to pay royalties for the material they re-transmit - didn't apply to them.

Aereo argued that it provided a “private” performance of the TV material to each of its subscribers. Public performance of broadcast material in the US requires a licence, but Aereo said that it wasn't actually engaging in "public performance" since it was capturing transmissions in the cloud and beaming them to one person at a time.

They based this on an exception that had been made for a cable company's cloud DVR service in 2008. In that case the judge had ruled that Cablevision's PVR wasn't making a public performance either.

And so far, Aereo has had some success persuading District Courts that it was observing the letter, if not the spirit, of the law. But Judge Dale Kimball - the same Utah judge who ruled much of SCO's legal assault on Linux to be out of order - disagreed.

"The clause states clearly that it applies to any performance made available to the public," Kimball noted. "Paying subscribers would certainly fall within the ambit of 'a substantial number of persons outside of a normal circle of a family and its social acquaintances' and within a general understanding of the term 'public'".

Lobby group the Electronic Frontier Foundation - which receives large donations from technology companies, including Google - hailed Aereo's earlier court victory as a victory for "innovation without permission".

"The decision is a positive step because it repudiates the 'permission culture' worldview of the TV networks and their allies," crowed the EFF's Mitch Stoltz. "The networks ... argued essentially that anyone who profits from copyrighted works must be made to pay".

Yes, Mitch, that's sort of the idea.

It was more of a victory for using something and not paying for it. Kimball pointed out that Cablevision had a licence - while Aereo didn't.

Narrow exemptions to copyright law are vital for some infrastructure to work. For example, a browser makes a cached copy of a web page and its images, and courts quite correctly do not interpret this as copyright infringement. They make an exception for it. But to take an entire output of other people's work requires a licence to reuse, then reuse it for profit without a licence - well, that's another story.

Hollywood Reporter has a summary and Kimball's ruling. The Supreme Court has agreed to consider the Aereo case. ®

Reg Tip:

If you are caught stealing someone else's pint in a pub, and they object, just tell them that you are pioneering 'Permissionless Drinking' - and they must back off.

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