Aereo: retransmission not a "public performance" in the US

An Easter decision:
rabbit ears antenna do not infringe copyright

Further to Ben's post almost a month ago reporting that a group of US broadcasters had sued new start up television company Aereo, comes the news that the 2nd US Circuit Court of Appeal has held that Aereo's transmissions do not constitute a public performance.

Aereo transmits television broadcasts to users' mobile phones, computers and iPads via individual mini antenna or "rabbit ears". It positions itself as a cheaper alternative to cable and satellite, though it offers far fewer channels, since it only retransmits broadcasts which are freely available to any users with an antenna (except Bloomberg TV which has reached a deal with Aereo).

A group of television broadcasters, including ABC, CBS, NBC, Fox, Disney Telemundo and the local PBS station, filed suits in the federal court saying Aereo's service used their content without permission. An injunction was denied at first instance. The Court of Appeal upheld that ruling, relying on Cablevision  to say that Aereo's transmissions are not a public performance, concluding that:

"Aereo’s transmissions of unique copies of broadcast television programs created at its users’ requests and transmitted while the programs are still airing on broadcast television are not ‘public performances' of the Plaintiffs’ copyrighted works under Cablevision. As such, Plaintiffs have not demonstrated that they are likely to prevail on the merits on this claim in their copyright infringement action. Nor have they demonstrated serious questions as to the merits and a balance of hardships that tips decidedly in their favor. We therefore affirm the order of the district court denying the Plaintiffs’ motion."

It was key to the Court of Appeal's finding that Aereo subscribers are assigned their own tiny antennas at Aereo's data center, making each retransmission a private performance rather than a public one. Dissenting Judge Denny Chin said that Aereo violates the Copyright Act and called these tiny antennas a "sham", saying that Aereo's set up is "over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law."

The television broadcasters may yet appeal this decision to the Supreme Court.

Compare this with the decision in TV CatchUp where the CJEU held that television broadcasters can prohibit the retransmission of their programmes by another company via the internet.

A copy of the decision is available, courtesy of EFF, here.

Aereo's press release is available here.