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The latest in the broadcast TV/copyright kerfuffle

TiVo just announced that it is releasing a new product (the “Roamio Over-the-Air [OTA] DVR”) that will allow customers who don’t have cable/satellite service to record, store, and playback over-the-air television programming (provided they have an HD digital antenna pulling in the signals).

This might sound a lot like the Aereo service that the Supreme Court declared to be infringing back in June.  [See here]  And, for all intents and purposes, it offers precisely the same functionality to the customer – recording and playback of OTA broadcasts.  But I’m pretty confident that the new TiVo box steers clear of any copyright problems — not the first time, and probably not the last time, that our too-complex and illogical copyright law draws opposite conclusions when applied to functionally equivalent technology.  The new Roamio is the precise analogue of the Sony Betamax – just a box allowing customers to record that to which they already had free access, and to play those recordings back to themselves — the distribution of which, the Court declared way back in 1984 in the seminal Sony v. Universal case, did not constitute copyright infringement.  Aereo tried to make this argument (that it was just a Betamax dressed up in new technological garb) but failed – in part because it was supplying not only the recording/playback capability, but the antenna itself, to customers.   This seemed to be important to the Court, because it made it more difficult for Aereo to argue that it was just recording material the customer already “owned”; no, the Court said, Aereo was actually going out and getting this content for the customer, and then recording it, which took it out from under the Sony no-infringement umbrella.  More importantly, but sticking a separate box in each user’s home, TiVo avoids the charge that was fatal to Aereo, with its centralized facility:  that it is “publicly performing” the copyrighted programs in the OTA broadcasts.  It’s close to impossible to argue that TiVo is somehow publicly performing copyrighted works by selling these boxes – whatever “performances” take place inside users’ home are pretty clearly non-infringing “private” performances.

The broadcasters, of course, might not see it quite this way.  The whole point of the Aereo litigation, for them, was their fear that services like Aereo would let customers cut their cable cords,which would reduce the fees that cable companies pay to network broadcasters for the privilege of retransmitting their content to customers.  The Roamio could have precisely this effect — that’s the point about it being functionally equivalent to the Aereo system — and the broadcasters have not been shy about bringing creative interpretations of copyright law into court when their revenue stream is facing a serious challenge.

David G. Post taught intellectual property and Internet law at Temple and Georgetown Law Schools, and is the author of In Search of Jefferson's Moose: Notes on the State of Cyberspace (Oxford). He is currently is a Fellow at the Center for Democracy and Technology, and an Adjunct Scholar at the Cato Institute.

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