After Aereo : Applying the Cable Compulsory License to Internet Retransmission Services

As Internet technology has advanced, consumers have increasingly opted to view video content on their computer, tablet, and smartphone screens instead of their television screens. In American Broadcasting Cos. v. Aereo, Inc. (“Aereo III”), decided in 2014, the U.S. Supreme Court rejected one of the more creative methods of delivering content via the Internet, closing a legal loophole by ruling that a company could not escape copyright liability by characterizing its retransmission of content as simply providing the consumer with equipment. Although the ruling definitively answered one question that had been subject to debate, the battle over Internet broadcasting has simply moved to another arena. The decision has led Aereo and similar companies to argue that they should be allowed to take advantage of the compulsory licensing scheme available to “cable systems” under Section 111 of the Copyright Act. The result of this new debate could have far-reaching effects on how consumers can access television content and on how the courts will interpret the Copyright Act in the future. This Note examines the decisions made in the wake of Aereo III that have addressed the application of Section 111 and, in particular, contrasts the reasoning of Fox v. Aereokiller, in which the U.S. District Court for the Central District of California held that Internet rebroadcasting services are eligible for a compulsory license under Section 111, with the reasoning of courts that have come to the opposite conclusion. This Note argues that both the text of Section 111 and its legislative history demonstrate that Internet rebroadcasting services fall under the statutory definition of “cable system.” It further argues that granting access to the compulsory licensing scheme would accomplish the important policy goal of increasing competition in the marketplace