Copyright Office Unplugs Aereo’s Cable Claim

WASHINGTON—The U.S. Copyright Office has refused Aereo’s claim that it’s now a cable company and therefore eligible to pay retransmission fees.

“In the view of the Copyright Office, Internet retransmissions of broadcast television fall outside the scope of the Sec. 111 license,” which defines the “limitations on exclusive rights [for] secondary transmissions of broadcast programming by cable.”

Aereo took the U.S. Supreme Court’s June ruling that its resemblance to a cable company meant that it was a cable company for legal purposes. Last week, the company filed comments with the U.S District Court for the Southern District of New York imploring Judge Allison Nathan to find that it had the same status as a cable operator to avoid being shut down by an injunction as the higher court directed. (See “McAdams On: Aereo’s Hail Mary”)

Jacqueline C. Charlesworth, general counsel and associate register of copyrights, wrote in a letter to Aereo’s Matthew Calabro that Aereo does not meet the definition of a cable operator as set forth in Sec. 111 of the Communications Act because it’s not regulated by the Federal Communications Commission.

“Sec. 111is meant to encompass ‘localized retransmission services’ that are ‘regulated as cable systems by the FCC,’” Charlesworth said.

Aereo had sent the Copyright Office 14 account statements covering reporting periods from Jan. 1, 2012 through Dec. 31, 2013, along with $5,310.74 in filing fees. Charlesworth said that since the issue remains before Judge Nathan, the Copyright Office would accept Aereo’s filings on a provisional basis for further review “depending on regulatory or judicial developments.”