CDAS Partner Eleanor M. Lackman authored an amicus brief on behalf of the Copyright Alliance in the Ninth Circuit case Fox Television Stations v. Aereokiller. In the brief, Ms. Lackman argues on behalf of The Copyright Alliance that The Copyright Alliance argues in the brief that district judge George Wu was correct in granting an injunction against Aereokiller, a service that provides unlicensed broadcast television over the internet for a fee. Ms. Lackman writes:
If those who invest in the production and distribution of creative works cannot be assured that their interests will be protected – regardless of whether those works are distributed through old, traditional models or new, “disruptive” ones – the array of works that will be offered to the public will suffer. Put simply, if Appellants win, everyone else loses.
The brief also draws a line between media companies based upon emerging technologies that innovate within the bounds of the law, and companies like Aereo and Aereokiller that disregard copyright law for their own ends:
Licensed Internet and mobile services such as Netflix, Hulu, MobiTV and even Appellees’ own online channels have flourished and thrived. The income earned from these licensed distribution systems translates into financial support for those to whom those distributed works owe their existence: from the producers who invest in the works, to the writers, actors, photographers, set designers, editors and others who provide their creative authorship, to the songwriters and recording artists that lend their talents to soundtracks. Particularly in an age where the present and future business of copyright dissemination, especially via the Internet, is increasingly focused on dissemination via performance (including through services such as Spotify and Rdio), the ability to reap benefits from the performing right needs to be cautiously protected so that “Progress” can furthered.
If unlicensed services such as Aereokiller are permitted to circumvent the need for payments to rights holders, it will cut into the cable business and other licensed legitimate businesses, which pay significant royalties to contributors whose works are used in the broadcasts those businesses retransmit. Cable, satellite and other licensed services have worked in partnership with creators to build businesses that benefit the public interest, and that return compensation to creative workers in a variety of ways. Songwriters are paid for the performance of their works in cable broadcasts, union workers are paid residuals, and productions are “greenlit” on the basis of understanding how various elements of the work will be paid for through licensed distribution. More broadly, because copyright protection incentivizes the commercialization of copyrighted works, it spurs investment in giving the public a variety of new ways to enjoy those works: copyright law gives these investors the ability to reap a return on their investments in creation and distribution of expressive works.