Locast Lawsuit: The Latest Copyright Powergrab?August 9, 2019
Last week, all four major broadcasters (ABC, NBC, CBS, and Fox) filed a copyright suit against Locast, a nonprofit organization that helps users watch free broadcast television over the internet. Only available in certain regions across the country, Locast receives free over-the-air broadcast signal in those regions and allows users to stream it without needing to worry about good antenna reception at their home. This unfortunate legal challenge to Locast is just the latest example of media companies inappropriately trotting out copyright claims to control otherwise free content. In this case, all it does is hurt viewers who are unable to access the free content through traditional means.
The best way to understand the history of this approach is through the lense of Aereo, a similar service that was sued out of existence in 2014. Broadcast is free to anyone with an antenna, so Aereo allowed users to rent an antenna and a DVR in Aereo’s warehouse, which got better broadcast reception than many homes. Users could then record and stream broadcast content over the internet. Broadcasters sued Aereo, that the service violated their copyrights. As Public Knowledge’s John Bergmayer noted at the time of the Aereo lawsuit, it doesn’t make any more sense for Aereo to be violating copyright by renting out antennas than it does for Radio Shack to be in violation for selling those antennas out of its storefront.
However, legally, these disputes all hinge on the rather confusing and arcane language of the Copyright Act. According to Section 111, “secondary transmission to the public of a performance” is infringement of the broadcaster’s copyright. Aereo’s defense, in which Public Knowledge filed multiple amici curiae briefs, was that it was not transmitting a performance to the public. Since each user of their service had their own antenna, each user independently received the performance. The internet link to the antenna was merely a conduit for their private performance, and private performance does not violate Section 111 (which is why you can’t be sued for having your friends over on Game Day).
While the Court relied on somewhat strange logic to rule narrowly for the broadcasters in that case, the current lawsuit against Locast has even less merit. This is because Section 111 creates an explicit exemption from the retransmission rules for nonprofits that don’t charge, or that only charge an amount necessary to cover their costs. Locast, a not-for-profit service created by the Sports Fans Coalition, seems to exactly fit that definition. They ask for a $5 per month donation, but have no mandatory fees.
At this point, readers might be wondering exactly why broadcasters care so much about this. After all, broadcast television, like radio, has always been free to anyone with the equipment to receive it (this is why before the cable industry, broadcast traditionally relied on ad revenue). By making this programming available for free to sports fans within the original broadcast footprint who don’t have good antenna reception, Locast is increasing the number of eyeballs watching. So long as the broadcasters have access to that viewership data, it should be a relationship that can benefit everyone involved. It makes even less sense to attack a nonprofit for this behavior than it did a company like Aereo, especially considering the degree to which the Section 111 exemption weakens their case.
The broadcasters, for their part, claim that these services hurt their bargaining position when they go to haggle with cable companies over retransmission costs and carriage of local channels. However, Sherwin Siy put his finger on another reason for their objections back in the Aereo days. There is good reason to believe these has less to do with commitment to copyright enforcement or their negotiations with cable networks and more to do with control of content distribution.
In the case of Locast, this is a particularly unnecessary and unfortunate reaction. Locast is a nonprofit entity, not a rival company. Its service, designed to bring this programming to viewers for free, is completely in keeping with the original spirit of broadcast television; allowing the public to benefit from quality programming. Broadcasters should be able to benefit from that wider audience, including having access to data tracking viewership numbers in order to support their advertising model.
Networks should embrace innovative new ways for their content to make it to otherwise unreached audiences, but they have proven just as hostile to Locast as they did to Aereo. Hopefully this time the courts, at least, will side with viewers.
Disclosure: Public Knowledge Policy Director Phillip Berenbroick serves on the Board of the nonprofit Sports Fan Coalition of New York, which runs Locast. Public Knowledge President and CEO Chris Lewis and Berenbroick serve on the board of the separate nonprofit, Sports Fan Coalition, as well.