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Duck, duck, goose? No, says the court — Aereo remains yet another duck

Many jurisdictions around the globe face complex questions resulting from the use of new technologies for internet redistribution of over-the-air linear broadcast signals in a manner that could threaten traditional television.

On 25 June 2014, the US Supreme Court released its opinion in American Broadcasting Companies v Aereo, preserving the pre-Aereo status quo for linear television retransmissions, while at the same time striking a blow to Aereo’s business and leaving significant uncertainty regarding how the law may apply in the future to other innovations and technologies. Similarly, in recent years, TV Catchup (TVC) has caused a comparable debate in the UK and Europe.

The Aereo and TVC cases illustrate a trend across both jurisdictions for the courts to look beyond technical differences between innovative and traditional broadcasters and distribution platforms and instead focus on the service offered to viewers. Effectively such decisions may be summed up by the old cliché ‘if it looks like a duck, quacks like a duck and walks like a duck, then it must be a duck’ (i.e. if it looks like television and works like television, then it must be treated as television)…

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