Copyright's 'Rube Goldberg' Problem: Retransmission in the Digital Age

Abstract

This paper uses the recent decisions of WNET v. Aereo and Fox v. Barrydriller to explore the legal issues involved in streaming copyrighted works over the internet. The paper discusses the following topics.

1. The Pre-Copyright Act of '76 Public Performance cases (Buck, Fortnightly, Teleprompter).

2. The Copyright Act of '76 and its legislative history regarding the Public Performance Right and the Transmit Clause.

3. The Pre-Aereo 2nd Circuit Jurisprudence on transmissions (PrimeTime, Cablevision, ivi).

4. The Aereo line of cases.

5. A survey of Public Performance Right and Transmit Clause jurisprudence.

6. Examining Aereo under Fair Use (whether retransmission is Fair Use and whether Aereo can be justified under time-shifting).

7. Examining Aereo under § 512(c) of the DMCA.

8. Whether Aereo is eligible for the received transmission exception under § 110(5).

9. How internet retransmitters became ineligible for Statutory Licenses due to The Copyright Offices Reports and the ivi case.

10. Why internet retransmitters should be eligible for statutory licenses.

The paper will be periodically updated to include recent decisions and expand the analysis.

Keywords: Copyright Law, Transmit, Transmission, Streaming, Public Performance Right, Aereo, FilmOn