The Court of Appeals for the Ninth Circuit is set to hear Fox Television Stations, Inc. v. Aereokiller, the latest case in the Internet retransmission service’s saga to obtain 17 U.S.C. § 111 compulsory licensing under the Copyright Act, which gives access to broadcast television programming at regulated rates. The Glushko-Samuelson Intellectual Property Law Clinic, on behalf of the Consumer Federation of America (CFA), filed an amicus brief in support of Aereokiller (now known as FilmOn) because American consumers are tired of over-paying for cable television. Download it here (PDF):
Another team of student attorneys filed a second brief on behalf of the National Federation of the Blind highlighting the importance of online access to television programming in accessible formats. Download the NFB’s brief here:
More information about the case and the CFA brief after the jump! More info about the NFB brief will come in a future blog post.
Our brief argues that Internet retransmission services, which allow you to live stream television over the internet, fulfill the core purpose of § 111 by fostering desperately needed competition in the monopolistic cable industry. Most Americans have a choice of one or two cable providers, at most, in their area. Through monopolies, cable providers have harmed consumers by limiting market competition, as indicated by low consumer satisfaction ratings. Internet retransmission services provide consumers with a reasonable alternative to incumbent cable companies. The “cord cutting” and “cord shaving” trends show that Internet retransmissions are the future of television, and they should not be inhibited by the monopolistic cable companies and colluding broadcasters. Internet retransmissions can disrupt the current monopolistic television landscape if they can obtain § 111 compulsory licenses, which prevent content holders from withholding or overcharging for programming. Without these licenses, broadcasters and incumbent cable monopolies will continue to freeze out internet-based competition. The Clinic submitted the amicus brief on behalf of CFA on April 1, 2016, and is waiting to hear if the Court will grant oral arguments.
Dr. Mark Cooper, Research Director at the CFA, wrote a report to coincide with the brief which describes the abuse of market power by cable providers and how the cable market urgently needs compulsory licenses for internet retransmissions to foster competition. The report, as argued in the brief, explains that incumbent cable providers and broadcasters use license negotiations, among other tactics, to limit market competition, which results in consumers being overcharged for cable services.