Aereo: Will AdWords Campaign Prove Copyright Infringement?

Do Aereo’s search marketing tactics prove that the TV service infringes copyright? A coalition of networks suing the company “says in court papers that it needs to examine records from Google about Aereo’s AdWords campaigns. That advertising information allegedly ‘bears directly’ on whether Aereo’s $8-a-month service potentially harms the market — which can be a factor in copyright infringement,” reports MediaPost.

Aereo’s services allow subscribers to watch over-the-air on demand broadcast TV via phones, tablets and other mobile devices for $8 a month in New York City. It has stated plans to expand to 22 additional cities. But those involved in the lawsuit claim Aereo is unlawfully providing content to customers.

According to documents filed last week in a U.S. District Court in Northern California, “The AdWords purchases will likely confirm its marketing itself as an alternative to both cable and satellite services as well as other Internet services, and not just an ‘equipment’ provider. They will also likely confirm that Aereo is encouraging cord cutting, a direct indication of market harm.”

But Aereo contends that its service is legal according to fair use rights. “Aereo says that consumers already have a fair-use right to time-shift by using VCRs or DVRs, and that its service enables another form of time-shifting,” explains MediaPost.

In order to fight that fair use defense, the networks filed to subpoena information from Google about how the AdWords campaign performed, in addition to collecting analytics data.

“Consumer behavior and response are critical considerations when a fair use defense is asserted,” according to the networks.

Beyond fair use, Aereo also defends itself by saying its technology is legal due to a previous ruling about remote DVRs, citing a case that occurred in the 2nd Circuit Court of Appeals, which said that “Cablevision did not infringe copyright by offering a remote DVR. The court rejected an argument by entertainment studios that Cablevision was engaging in a public performance by transmitting programs to users from a remote hard drive,” according to the article.

Aereo claims a very similar defense to the one Cablevision claimed in that case — that it uses installed antennas to capture TV broadcasts and then creates recordings of shows for customer use. “It plays back those recordings using a remote digital video recorder,” notes the article. “Aereo says it doesn’t have to pay licensing fees because people are allowed to install antennas and receive TV transmissions for free, as well as to record shows for personal use.”