On Wednesday, the Supreme Court looked down on Aereo's system of capturing over-the-air television programming and relaying those copyrighted works to digital devices. It's now time to look higher -- thousands of feet above terrestrial signals to what's happening on airlines traveling internationally.
Last October, Sony Music and various subsidiary labels took United Airlines to a New York federal court with allegations the airline giant didn't have proper license to publicly perform works by artists such as Britney Spears, Carrie Underwood, Justin Timberlake and Michael Jackson.
Today, the record labels submitted court documents intended to save their claims against Inflight Audio Ltd., another defendant and a contractor of the airline responsible for "dubbing" the recordings before handing them off to another contractor that loaded the aircraft with songs and music videos before take-off.
Inflight is based in Dublin, Ireland, and in a motion to dismiss submitted last month, insists it has properly licensed the music by paying Phonographic Performance Ireland, the authorized Irish collecting society for record labels.
But then, the copyright issues get tricky. The complexities of the Aereo case might look tiny from way up high.
Inflight's licensing covers the public performance of music in Ireland, but of course, airlines are not stationary.
Insofar as there being a United Airlines aircraft leaving Ireland for the United States, the defendant says it "did not exert control over the allegedly infringing performances of United, in New York or elsewhere. Indeed, Inflight Dublin lacked even a theoretical ability to control United's activities under the relevant agreements. Accordingly, Inflight Dublin did not 'manage' the on-board music offering of United, and was never even informed about the territories in which United planned to perform the recordings at issue."
As such, Inflight challenges jurisdiction and wants the lawsuit grounded.
On Thursday, the record labels submitted their opposition to the motion to dismiss. According to the plaintiffs, Inflight isn't analogous to a company that loads a jukebox in restaurants since eating establishments are "plainly fixed locations" whereas "United airplanes loaded with Plaintiffs' sound recordings fly multiple routes with different origin and destination states."
The record companies tell the judge that the defendant is no "passive vendor," not when its Irish licenses only permit reproduction in Ireland, not when it perfectly understands that aircrafts travel, and not when it has a business model directed at servicing airline clients worldwide.
"By operating without authorization and thus skirting rightful payment to copyright owners in the United States, Inflight Dublin has been able to price its services low, making these services attractive to the world’s airlines, and thus earning significant revenue from United and other airline clients," says the opposition memorandum. "In sum, Inflight Dublin deliberately built a profitable business based on facilitating the infringement of Plaintiffs’ copyrighted sound recordings in the United States and in New York on a massive scale."
Inflight is attacked as having "created an outlaw cottage industry" of infringing music up in the sky. The record labels believe that to hold them liable for secondary copyright infringement is jurisdictionally proper.
This story first appeared on THR.com