Court Ruling Against Locast Gets the Law Wrong; Lets Giant Broadcast Networks Control Where and How People Watch Free TV

In a blow to millions of people who rely on local television broadcasts, a federal court ruled yesterday that the nonprofit TV-streaming service Locast is not protected by an exception to copyright created by Congress to ensure that every American has access to their local stations. Locast is evaluating the ruling and considering its next steps.

The ruling, by a judge in the U.S. District Court for the Southern District of New York, does the opposite of what Congress intended: it threatens people’s access to local news and vital information during a global pandemic and a season of unprecedented natural disasters. What’s more, it treats copyright law not as an engine of innovation benefiting the public but a moat protecting the privileged position of the four giant broadcast networks ABC, CBS, NBC, and Fox.

Locast, operated by Sports Fans Coalition NY, Inc. (SFCNY), enables TV viewers to receive local over-the-air programming—which broadcasters must by law make available for free—using set-top boxes, smartphones, or other devices of their choice. Over three million people use Locast to access local TV, including many who can’t afford cable and can’t pick up their local stations with an antenna. The broadcast networks sued SFCNY, and its founder and chairman David Goodfriend, arguing for the right to control where and how people can watch their free broadcasts.

EFF joined with attorneys at Orrick, Herrington & Sutcliffe to defend SFCNY. We told the court that Locast is protected by an exception to copyright law, put in place by Congress, that enables nonprofits to retransmit broadcast TV, so communities can access local stations that offer news, foreign-language programming, and local sports. Under that exception, there’s no infringement if nonprofits retransmit TV broadcasts without any commercial purpose, and without charge except to cover their costs. Locast viewers can voluntarily donate to SFCNY for this purpose.

Congress made the exemption so that Americans can access local broadcast stations—and expanding such access is exactly what Locast does. But the court accepted a bogus argument by the giant networks, and ruled that user contributions to Locast were “charges” and can’t be used to expand access so more Americans can receive their local channels via streaming. The ruling reads the law in an absurdly narrow way that defeats Congress’s intention to allow nonprofits to step in and provide communities access to broadcast TV, a vital source of local news and cultural programming for millions of people. This matters now more than ever, with communities across the country at risk because of COVID-19, devastating fires, and deadly hurricanes.

Make no mistake, this case demonstrates once again how giant entertainment companies use copyright to control when, where, and how people can receive their local TV broadcasts, and drive people to buy expensive pay-TV services to get their local news and sports. We are disappointed that the court is enabling this callous profiteering that tramples on Congress’s intent to ensure local communities have access to news that’s important to people regardless of their ability to pay. The court made a mistake, and Locast is considering its options.