Locast Shuts Down, As Yet Again A Bad Interpretation Of Copyright Law Makes The World Worse
from the no-cast dept
A few weeks ago I woke up one day to find the Lake Tahoe region on fire and the New York region underwater. Meanwhile the Supreme Court had just upended decades if not centuries of Constitutional law. But I could learn about none of it from watching local news because Locast had shut down overnight following a dreadful decision by a district court a few days before.
Locast was a service similar to the now-extinct Aereo, although with a few critical legal distinctions necessary for it to avoid Aereo’s litigation-obliterated fate. But the gist was the same: it was another rent-an-antenna service that “captures over-the-air (‘OTA’) broadcast signals and retransmits them over the internet, enabling viewers to stream live television on their preferred internet-connected viewing device” [p. 1-2 of the ruling]. And, like Aereo, it is yet another useful innovation now on the scrapheap of human history.
Absolutely nothing about this situation makes any sense. First, and least importantly, I’m not sure that Locast shutting down wasn’t an overreaction to a decision so precariously balanced on such illusory support. Then again, no one wants to be staring down the barrel of potentially ruinous copyright lawsuit under the best of circumstances, but especially not when the judge has arbitrarily torn up all your high cards. Getting out of the game at least helps limit what the damage will be if the tide doesn’t eventually turn.
More saliently, it makes absolutely no sense that the plaintiffs, who were mostly some of the largest television networks, would even bring this lawsuit. Services like Locast are doing them a favor by helping ensure that their channels actually get watched. As I’ve pointed out before, the only reason I ever watch their affiliates is thanks to Locast. Like many others, I don’t have my own cable subscription, nor my own antenna. So I need a service like Locast to essentially rent me one so that I can watch the over-the-air programming on the public airwaves I’d otherwise be entitled to see. Suing Locast for having rented me that antenna basically says that they don’t actually want viewers. And that declaration should come as a shock to their advertisers, because the bottom line is that without services like Locast I?m not watching their ads.
It also makes no sense for copyright law to want to discourage services like these. Not only are these public airwaves that people should be able to receive using whatever tools they choose, but cutting people off from this programming doesn’t advance any of the ideals that copyright law exists to advance. Or, more practically, it deprives people of shared mass media sources and drives everyone instead towards more balkanized media we must find for ourselves online. With lawmakers increasingly concerned about people having to fend for themselves in building their media diets, it seems weird for law to effectively force them to. Especially after decades of policymaking deliberately designed to make sure that broadcast television could be a source of common culture, it would be a fairly radical shift for policy to suddenly obstruct that goal.
As it turns out, though, Congress has not wanted to completely abandon bringing broadcast television to the public. Not even through copyright law, where there’s actually a provision, at 17 U.S.C. Section 111(a)(5) (“Certain Secondary Transmissions Exempted”), that recognizes rebroadcasting services as something worth having and articulates the dimensions that such a service would have to meet to not run afoul of the rest of the copyright statute. The salient language:
The secondary transmission of a performance or display of a work embodied in a primary transmission is not an infringement of copyright if […] the secondary transmission is not made by a cable system but is made by a governmental body, or other nonprofit organization, without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service.
The Locast service, as provided by its non-profit parent Sports Fans Coalition NY, threaded that regulatory needle. Unfortunately, however, the district court disagreed. But the problem wasn’t just that the court disagreed, but that it disagreed by reading into the statute language that wasn’t there, and also that wouldn’t make any sense to actually be in there for the provision to have any practical utility.
The crux of the decision hinged on how Locast made the money needed to support itself. The service was underwritten in two ways. One way ? worth noting for the potential implications of the decision causing Locast to shut down but that was not particularly critical to the holding on its own ? is from some other service providers.
SFCNY also generates income through donations from MVPDs, such as AT&T, Promotion and Advancement of Local Opportunities (“PALO”) and Liberty Cable vision of Puerto Rico LLC. Some MVPDS integrate the Locast application in their own smart – TV platforms , and in the event of a channel blackout (which may result from a breakdown in retransmission consent negotiations between an MVPD and broadcast owner), those MVPDS can direct their customers to the Locast app so that there is no disruption in their live TV service. [p. 3]
The other was from user donations, and this source of income is what the court took issue with, even though the statute allowed it. Of course, the way the decision reads, the court seemed to be looking for reasons to find Locast outside of the statutory exemption. For example, it took issue with the fact that users could use the service without paying. It didn’t like the fact that the service was ostensibly hobbled by periodic interruptions of ads requesting that users pay instead.
To avoid that interruption in service, users can pay $5 a month for “preferred” (i.e., uninterrupted) access to the service, or can request that the service stop displaying the donation requests based on their financial circumstances. Users who choose to pay receive the uninterrupted service for time correlating to the amount of the payment. For example, if the user pays the minimum $5 amount, she receives uninterrupted service for the entire month. […] The obvious economic fact is that these “donations” are really a scale of fees for uninterrupted service, and it works. At present, Locast is almost fully funded by payments from users. [p. 3]
But as I’ve noted elsewhere, that concern doesn’t make any sense. The statute doesn’t obligate a rebroadcasting service to provide its service for free, and it certainly doesn’t create any condition for how the service might be offered for free should the service choose to provide such an option. Unfortunately, however, the court seemed to infer there was one, and, moreover, that collecting any money in exchange for the better version of the service somehow amounted to a disallowed commercialized perk it was selling.
The payments defendants elicit from users are charges assessed on users to avoid constant service interruptions, regardless of whether defendants euphemistically call them publicly “recommended donations”. Locast users pay the minimum $5 monthly fee in exchange for month- long, uninterrupted service . It is not merely a recurring gift to a charitable cause. It is of no consequence that a number of users employ the service without paying. SFCNY still solicits, and receives, substantial amounts in charges from recipients for its uninterrupted service. [p. 5-6]
On the contrary, the statute expressly says that the service can charge. Yet somehow the court construed the statutory language to prevent the service from actually asking for the money. In the wake of this decision, and before Locast opted to just shut down, the service first considered just not asking for the donations anymore, at least not as persuasively as it had been with the programming interruptions. But it may have opted for a more drastic response because it’s questionable whether making this specific adjustment would have actually made the court happy, since the court seemed to have been going out of its way to find the service outside the statute in any way it could.
Including by finding that apparently Locast had made too much money:
In 2020, Locast’s total costs (including depreciation) were $2.436 million. According to defendants , those costs “represent what it costs to operate the Locast service in 2020, when the Locast service began operating in 16 markets and gradually expanded to 25 markets.” Locast’s total revenue in 2020 was $4.519 million, comprised of $4.372 million from users and $147,161 from other sources. On those undisputed facts, in 2020 Locast made far more money from user charges than was necessary to defray its costs of maintaining and operating its service. [p. 6]
But the upshot of the court’s reasoning is that service providers could never charge users enough to “defray the costs” of the service unless they used some sort of dynamic pricing, where the service adjusted its monthly charges on the fly to match its current budgetary requirements as divided across the current number of paying users it had in order to make sure it never accidentally collected too much money. The statute, of course, says no such thing. It says service providers can charge users. It is solely the court that has read in these extra requirements, and in a way that effectively nullifies the language Congress included by depriving the “it’s ok to charge” language of any meaningful effect. In which case the only way such a service could potentially exist is with a single wealthy benefactor willing and able to underwrite the entire cost indefinitely. And if that were to be the case it would make the existence of such services so unlikely as to be illusory, rather than real things that copyright law enabled.
The court also didn’t like what Locast did with its money, having dared to reinvest it in expanding its services to other regions.
Defendants aver that contributions from users are essential to the expansion of the Locast service. They argue that disallowing use of the assessments for that purpose would prevent expansion , which they say was not intended by Congress when granting the exemptions. But under the statute, income made from charges to recipients can only be used to defray the actual and reasonable costs of maintaining and operating the service, not of expanding it into new markets. The argument that Section lll(a)(5) should not “prevent” a natural process of expansion misconceives the statutory structure. Retransmissions (i.e., secondary performances of copyrighted matter) are already penalized (“prevented”) by the Copyright Law in its main section. See 17 U.S.C. ? 501 (“Anyone who violates any of the exclusive rights of the copyright owner . . is an infringer of the copyright or right of the author, as the case may be.”). Nothing in Section 111 specifies that an expansion of the number of infringing transmissions is exempt from that law, and it is not for a court to infer that Congress really meant to allow them. It would have been simple for Congress to add one word to paragraph (5) to make it read “. . costs of maintaining, expanding, and operating the secondary transmission service.” But expansion is nowhere mentioned, and it is therefore excluded from the short, tightly-crafted grant of exemptions.” [p. 6]
It takes an incredibly limited read of the statute to interpret it this way, with this manufactured focus on “markets.” The court seemed to assume that the service was simply born one day with infrastructure that would remain at that exact size forever and ever, regardless of whether it ever made sense to make further capital improvements. But the statute itself is not so prescriptive. It doesn’t say that antennas can’t be added, nor does it articulate any limitation as to where they can be added, because the rebroadcasting the service is still doing its allowed rebroadcasting regardless of whether its antennas are spaced two inches, two feet, or two thousand miles apart. In holding geographic expansion against the service to find it outside the statute, the court invented a requirement out of whole cloth, in conflict with the rebroadcasting Congress obviously intended to enable in codifying this provision in the first place.
All in all, it is a depressingly bad decision all around. Locast lost, but so did everyone else. Including channels that might have actually liked to have been rebroadcast, which have now lost the viewers who depended on Locast. And including channels that themselves depend on public support to exist, which are now dark to that very public that they need to support them, and whom they are supposed to serve. The plaintiffs have ruined it for everyone, and it prompts the question: if they are so offended by the idea of people being able to tune into their broadcasting, then why don’t they give the spectrum back to the public so it that it can be allocated to someone who does want to make sure the public can benefit from broadcasting over its own airwaves? Because with this lawsuit these plaintiffs have ensured that no one can make use of this resource in a way that the public can reliably benefit from. And, sadly, with the court’s blessing.
It’s hard to say what will happen. There were some rumblings that Locast will appeal, but it might not have to. It finds itself in a terrible litigation position and could quite reasonably try to abandon the fight if it can extract an expedient settlement. That would leave this terrible decision on the books, chilling any other service that might like to avail itself of the rebroadcasting provision of the statute. And what could fix the situation then? Often, when courts get decisions wrong, Congress can go back and write a statute to implement the better policy. But here Congress already wrote that statute, and it just didn’t matter.
Filed Under: copyright, non-profit, over the air tv, streaming, tv
Companies: aereo, locast
Comments on “Locast Shuts Down, As Yet Again A Bad Interpretation Of Copyright Law Makes The World Worse”
there is never going to be a ‘bad interpretation of copyright law’ when it gives power to those who crave it all the time and kicks anything to do with the people in the crutch!!
We don’t charge viewers, and get paid according to the number of viewers, so we will shut down any means of increasing our viewership, instead of asking for a report of the numbers viewing a program. Seems like a sure fire way to build a business that shrinks to nothing.
Broadcasters get paid by advertisers. If they can’t track Locast viewers and demand payment from advertisers – assuming Locast viewers watch the ads – then Locast is of no use to broadcasters.
This case really opens up a broader question, namely: as broadcast/cable circle the drain and are replaced by massive global streaming services like Netflix, Disney+ and Amazon Prime, what happens to news? Is anyone actually willing to pay to watch quality news, or are they happen to get nonsense on Facebook for free and call that news?
There could be a Locast like service structured like Netflix. Many people in the world is interested in their local news, but how to deliver that cost-effectively? It can’t benefit from efficiencies of scale. News seems to have been entirely forgotten. There are efforts underway to push sports onto streaming in a way that will still attract fans and revenue, but news? Nothing.
US Americans are so greedy, they would rather shoot themselves in the foot than let anyone else have a chance, of what they imagine, to be a "free ride". So selfish.
in an age when local newspapers are closing ,forcing a local tv providing over the air tv is crazy, also some people cannot put up aerial,s ,people living in apartments ,cable tv was invented to provide a better signal to people living in area,s where the ota signal was not good .why would nbc,cbs, not want more people to view their advertising .
youtube the no1 video service in the world relys on showing ads.
I live in a hilly region, so if I wanted to receive local TV, I’d need an aerial nearly 100 feet tall! The entire area around where I live is entirely served by Spectrum cable, or DirecTV, even though there’s several stations in the city not even 20 miles away. You only get local TV if you happen to live on the top of the ridges.
why would nbc,cbs, not want more people to view their adverts.
I wonder if this is more about control than anything else. When a broadcaster has a certain coverage by their signal they can assume they can reach so many viewers. But if you somehow extend that coverage, they have no way to measure it. Why that matters I have no idea. Just a flying guess.
Re: why would nbc,cbs, not want more people to view their advert
That may be a consideration, but the explanation may instead be that they are trying to extract more money from cable retransmission agreements, and if there’s a free alternative, then those deals will be less lucrative for them.
In other words, it weakens their monopoly. Which is what this statutory provision expressly was going to do.
Re: Re: why would nbc,cbs, not want more people to view their ad
That will only work until the last generation who wants to watch godawful local news finishes shuffling off this mortal coil. Then they’re pretty much screwed.
Re: Re: Re: why would nbc,cbs, not want more people to view thei
They can expand into streaming.
Re: Re: Re:2 why would nbc,cbs, not want more people to view
But will news expand into streaming? Right now, streaming is on track to be dominated by Netflix, Disney+ and Amazon Prime. HBO Max may join them if better management can turn it around. AppleTV+ is just focused on a niche premium content service. Amazon Prime shows some sports but none of them seem at all interested in news.
They all have huge global audiences in mind. Shows and movies are easiest to amortize across a global audience. Sports might be more challenging but there are ways. But news? What does a global news operation really look like? CNN is the closest, but I don’t think its focus on disasters and political screetching is really the right formula. If news does make the transition to streaming, I think it will take
Re: Re: Re:3 why would nbc,cbs, not want more people to v
..entirely new forms.
Expected, considering that giving away tv and undercutting licensing fees is basically asking for a lawsuit.
Sad though i’ll admit. But mind you, if this wasn’t free and they had licensing fees, there wouldn’t be any lawsuit.
And yes, I’m aware not everyone will agree with me, but this is my opinion.
Following the law is asking for a lawsuit?
The problem here isn’t actually with the law; it’s that the court ignored it and replaced it with its own different law instead.
That's not why broadcast TV exists
No, it is an anti-favor.
The broadcast signal is not meant to be watched by anyone.
Broadcast watchers are not paying stations directly for watching; stations can’t sell broadcast watcher habits to advertisers; stations can’t tailor ads to maximize advertiser takings from broadcaster watcher pockets; and, with rebroadcasters, stations can’t control the boundaries of their viewing area for blackouts and local business advertising.
No, broadcast television is not meant to be watched. It only exists to create a barrier to competition in the station’s viewing area. Stations wouldn’t even bother with a broadcast signal, if the FCC didn’t require it as a condition for anti-competition. My observation is that their signal is often weak or offline, because they don’t care about it — so long as they log enough time online to satisfy the FCC the station has met its obligation.
A rebroadcaster cannot exist in that environment. No matter where the rebroadcaster kicks the ball, the broadcasters will just move the goalposts somewhere else.
The legal system is broken. When the side with money prevails over the side that’s right, the idea of rule of law becomes a joke.
The economic and regulatory structure of linear television is broken. Broadcast networks feel they need retransmission revenue to compete with the subscription fees cable networks charge for entertainment and sports programming, which has led them to neglect their own nominal medium. Linear television still has an important role to play in a streaming world, and that role is more important in the context of over-the-air broadcasting where there’s a limited amount of spectrum to go around, but broadcasters have felt actively disincentivized from making that future possible, let alone preparing for it, allowing themselves to be portrayed as the villains in the cable bundle’s problems. So long as broadcasting feels more like an annoying aggravation the networks have to put up with for historical reasons and that they can ditch once it becomes unacceptably crippling to their bottom line (as they threatened in the Aereo case), and less like something with value in its own right, this story will repeat itself.
…Then you no longer have a democracy. What you have instead is a capitalist dictatorship.
In a world of on demand streaming, scheduled broadcasting is scheduled to die, as fewer and fewer people arrange their lives around the schedule, and more and more schedule their viewing around their social lives.
Linear TV is fatally broken. The audience has fled except for oldsters who will kick off eventually and then that’s it for linear TV. Cable too. The audience has decamped for streaming, where there seems to be little interest in delivering news alongside Squid Game and The Mandalorian.
It’s not copyright anymore…the more accurate term is copymine.
And its resulting state of affairs is a copyminefield.
'You're guilty, now to figure out how.'
Given the contortions the judge engaged in this reeks of a ruling where the outcome of ‘guilty’ was decided at the outset and everything else was about trying to justify that, up to and including ignoring what the law actually said and coming up with whatever ‘interpretation’ would support that.