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One of these illegal SVoD providers was Aereo.com, which filed for Chapter 11 reorganization proceedings in November 2014. In June 2014, the US Federal Supreme Court handed down a decision in ABC v Aereo. Aereo, a TV-over-the-internet service, had introduced a disruptive business model, using thousands of very small antennas stored in a warehouse, to live stream broadcast signals which they had encoded into packets, directly into the home of users. It was sued by the broadcasters (originally including 21st Century Fox, CBS, NBC and ABC) for infringement of their copyright in public performance. Aereo defended its actions claiming that all it did was to provide a device to watch a programme that was already available. The Supreme Court decided in favor of the broadcasters, ruling that Aereo and its cloud-based technology was too similar to a traditional cable company to say that its service did not infringe. The failed watch-TV-on-the-Internet startup Aereo.com may come back though, since TiVo bought its trademarks, domain names and customer list at auction, for the bargain price of USD1 million in March 2015. TiVo could be looking into offering an Aereo-like service but one that is licensed by TV networks[5].
During the AIPPI Congress in September 2014, Elizabeth Valentina, Vice President Content Protection for Fox Entertainment Group, (speaking on her own behalf as Fox was still litigating the case), pointed out that Aereo's business model involved the streaming of broadcast content obtained without permission, authorisation or license, and for which service Aereo were charging their subscribers. This business model was harming that of the broadcasters and content owners, by devaluing their content, interfering with exclusive deals for content to be delivered over the internet and to mobile devices, as well as diverting eyeballs from TV advertising revenue. It was a harm clearly recognised by Judge Nathan at first instance, in the broadcasters' motion for a preliminary injunction. During the same congress, Sanna Wolk (Associate Professor at University of Uppsala, Sweden and co-chair of AIPPI's copyright committee) compared the US position with that adopted in the EU where the CJEU in March 2013 ruled that online near-live streaming by the UK Company, TV Catchup, was an unauthorised "communication to the public" within the meaning of Article 3(1) of Directive 2001/29 (InfoSoc Directive) and therefore an actionable infringement of copyright. The CJEU concluded that as TV Catchup was making the works in the original "terrestrial" TV broadcast available over the internet, and hence using different technical means to retransmit the broadcast, this retransmission was a "communication" within the meaning of the Article 3(1). Furthermore in the circumstances the court did not have to consider whether communication was to a "new public", as the new transmission required an individual and separate authorisation from the copyright owners. While full-blown litigation seems the obvious and mostly-used response to copyright infringement and counterfeiting in video streaming services, it is debatable as to whether an ardent battle against streaming video piracy is worth it. Indeed, drawing on the experience from the inconclusive fight, led by the music industry, against illegal downloads of music tracks offered by peer-to-peer websites in the early noughties, it may be worth biting the bullet and exploring non-legal avenues to this endemic and crippling infringement.
For example, Popcorn Time, dubbed the "Netflix for pirates" was recently on the run. Time4Popcorn.eu, one of the most popular iterations of the illegal movie site, has had its URL suspended by European regulators in October 2014, effectively turning off the lights for a site that had attracted millions of users in just a few months.
The European ID Registry knocked Time4Popcorn.eu offline due to suspicion that the page was registered with inaccurate administrator contact details. The site's developers, rather than provide accurate contact information, simply relocated to Time4Popcorn.com. With more and more court decisions forcing ISPs to block access to certain websites in the territories that they cover, the best legal approach seems to request an injunction, in key territories, for ISPs to block end users access to the websites of illegal SVoD providers.
What's in the stars for video streaming players and traditional feature film and sitcom producers?
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