Television's rerun of an old problem

Friday 05 April 2013 16.16
Some customers are now switching away from subscription TV to online alternatives
Some customers are now switching away from subscription TV to online alternatives

If you think you've seen it all when it comes to the legality of streaming content, you probably have, writes Niall Kitson.

It seems TV broadcasters just can't keep up with the viewing public.

Having embraced on-demand model through the likes of BBC iPlayer, 4OD, RTÉ Player and Hulu; stations and networks are now dealing with the ultimate threat: ‘cord cutting’ consumers forsaking terrestrial and cable connections entirely in favour of online alternatives – legal or otherwise.

The flight from linear scheduling plays havoc with advertising models but the ability to avoid ads and scheduling is not a new problem; there are just better toys to exploit them with.

In the 1980s, the Motion Picture Association of America failed to bury the video cassette recorder as a court ruled they did not facilitate copyright infringement as long as they were only for private use.

Later the industry discovered there was money to be made in home entertainment sales and a one-time threat became an essential second market for movies and TV shows.

Ask anyone who lived in Donegal, Waterford or Cork in the mid- to late-90s about TV deflectors and you’ll be told at length about cases brought to court seeking to prevent the use of equipment to retransmit UK television signals into Ireland.

Such was the depth of feeling that it became an election issue. Again, technology provided an immediate solution where traditional infrastructure failed.

The same thing is happening all over again – networks are failing to keep up with customer demands and the disruptive technologies that meet them.

Now it’s happening all over again. On 1 April a court in New York ordered that the technology used by Aereo, a start-up that records and streams broadcast material online for its customers, does not breach copyright.

Aereo’s successful defence hinged in art on the same logic that saved the VCR 30 years ago: the storage of a single copy for individual use per device.

Don't expect the floodgates to open for websites that stream content without the consent of the rights-holders, though. Aereo’s case is as unique as the technology it employs.

Unlike current on-demand services that operate via the web, Aereo’s server room houses thousands of small antennas mounted on circuit boards and assigned individually to customers, tied to a digital video recorder.

Users then access their material – all of which comes from free-to-air stations or partners – on any Internet-connected device.

Broadcasters (Fox and Univision among them) argued that using streaming technology basically amounted to unauthorised public performance but the court sided with Aereo, recognising that what the company was doing was providing an aerial and a digital video recorder that just happened to be connected to the user via the Internet instead of a cable at home.

Citing a 2008 case involving a cable box developed by Cablevision, it was agreed that as Aereo was creating copies on a per-user basis it was not providing public performances.

Aereo has plans to expand into a further 22 cities in the US this year and the removal of this legal hurdle will help it gather momentum with networks and potential broadcast partners (Bloomberg is already on board).

If the networks are annoyed by the ruling they really have no right to be.

The action against Aereo was fought and lost on the back of the Cablevision decision but even a casual glance over the technology shows it to be no different to the VCR/DVR/PC that sits under your TV right now.

A similar approach is being tried by another company, FilmOn, best known for its own service that combines real time streaming channels from networks and more exotic sources.

Given its international user base, FilmOn could be an interesting test case to see just how far the hosted antenna can stretch.

Closer to home, an EU ruling early last month could spell trouble for services that rebroadcast terrestrial channels without an Aereo-style solutions, such as AerTV.

In a case brought by ITV, Channel 4 and Channel 5 to target British website TVCatchup, the Court of Justice for the European Union ruled that the website did violate copyright as the real time livestreaming of free-to-air channels did amount to a retransmission and thus infringement of copyright.

The upshot of the decision is that should networks want to withdraw their channels from livestreaming services they are completely within their rights to do so.

That this ruling comes from the EU will be heartening to both RTÉ and TV3, who have not given their permission for AerTV to livestream their broadcasts.

Will we see websites like AerTV be taken off air? If it became a matter of principle the short answer would be 'yes' but given the cost of legal action and likely benefits, it's arguable that RTÉ and TV3 will have to turn a blind eye to it.

Then again, maybe livestreaming will find its feet as yet another vector to reach existing audiences and attract new advertisers.

History says it’s only a matter of time before broadcasters find a way to make money from it. Thinking caps at the ready.

Niall Kitson is editor of TechCentral.ie