Industry attorney and expert on webcasting performance royalties David Oxenford points out an interesting possible implication for radio and webcasting of a recent court case concerning the streaming of broadcast television signals. It comes down to the government's definition of a "public performance."
Last week the Second Circuit upheld (here) a lower court finding to allow the company Aereo to continue to stream television content it captures from broadcast signals without paying royalties to the original broadcasters or program producers. According to the Court's finding, there is no "public performance" in the case of a service in which "programming is streamed to the viewer individually, at their demand, rather than transmitted all at once to multiple consumers," Oxenford wrote.
A "public performance," according to the Copyright Act, includes any transmission or retransmission of a performance to multiple individuals. The design of Aereo's system allows it to argue that ultimately, it's each individual viewer that receives broadcast content, using her or his "own antenna," and who directs the delivery of the content, not Aereo.
"Thus, the Court determined that the transmission of the television signals was not a public performance by Aereo, but a private one at the direction of the ultimate user," explained Oxenford.
It's interesting to think about what this might imply. For instance, is a service like Spotify, when it's giving a single user on-demand access to a song, making a "public performance" for which it's obligated to compensate rights holders? Listeners to Pandora (and other webcasters like AccuRadio) each have their own dedicated stream (so as to allow customization, song-skipping, etc.). Given that, are Pandora and AccuRadio making "public performances" of this content (or does this not satisfy the "at the direction of the ultimate user" element of the decision Oxenford cites above)?
"The issue could also be resolved by Congress, just as it did when cable first came on the scene, by passing legislation to redefine a public performance," Oxenford concludes.
Read Oxenford's latest in Broadcast Law Blog here.