Broadcasters Win Legal Victory in Europe in Effort to Control Streaming

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As television broadcasters eagerly await an appeals court judgment on whether a judge wrongfully denied an injunction against Aereo, they scored a legal win in the European Union against TVCatchup, a service that allows consumers to watch live over-the-air U.K. television on their computers, phones or other digital devices.

On Thursday, the Court of Justice of the European Union examined whether online streaming of television broadcasts is a "communication to the public," requiring the consent of the copyright owner. The lawsuit was brought by ITV Broadcasting, Channel 4 Television Corporation and other local TV broadcasters who are challenging the contention that streaming terrestrial signals to private devices isn't a violation of the EU's Information Society Directive.

This morning, broadcasters got the preliminary ruling they sought as the judge confirmed the "public" nature of streaming.

TVCatchup appears to work similarly to Aereo's system of thousands of antennas. Here's how the Court described the technology in dispute:

"The [TV] signals are captured via an aerial and then passed to the acquisition servers, which extract individual video streams from the received signal without altering them. The encoding servers then convert the incoming streams into a different compression standard. Next, the origin servers prepare streams of video for sending over the internet in a variety of formats."

Last July, in turning down an injunction against Aereo, a federal judge in New York applied the principles of a 2nd Circuit decision concerning Cablevision's remote-storage DVR, which was deemed to not be a transmission "to the public."

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When the TVCatchup case was first heard by the High Court of Justice in England and Wales, the judges there weren't sure how to rule on whether or not Internet streams to members of the public who would have been entitled to access the original broadcast signal using their own television sets should be deemed as a "communication to the public," under EU law.

So the proceedings were stayed, and the dispute was referred to the EU's Court of Justice for a preliminary ruling.

On Thursday, that Court said that the principle objective of the directive at issue was "to establish a high level of protection of authors" and that "'communication to the public’ must be interpreted broadly."

The judges continue their analysis by saying that because the retransmission of a terrestrial TV broadcast over the Internet uses a different technical means of communications delivery,  the retransmission must be considered a "communication" and not a "technical means to ensure or improve reception of the terrestrial television broadcast."

As to whether it's "to the public," the Court says "it is irrelevant whether the potential recipients access the communicated works through a one-to-one connection. That technique does not prevent a large number of persons having access to the same work at the same time."

Thus, the broadcasters prevail.

Here's the full ruling.

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