Aereo battles seem destined for the Supreme Court

Aereo, the controversial start-up that lets people watch TV on mobile devices for $8 a month,  via a mini antennae, has won a significant new court victory in Boston where a federal judge refused a broadcaster’s request to shut down the service.  Aereo offers the public a means to view broadcast TV over the internet, providing an alternative to expensive cable TV services and say all they do is enable people to access the airwaves with tiny TV antennas, and for this reason the company says they don't have to license broadcasts.

US District Judge Nathaniel Gorton refused to grant a temporary injunction to the broadcaster Hearst, which had argued that Aereo was rebroadcasting its Channel 5 signal without permission and infringing copyright, finding that Aereo did not appear to violate copyright because it's service is akin to a remote DVR service that lets subscribers watch and record private individual copies of the programs themselves - although the Judge did recognise the harm Aereo could cause to broadcasters with lost cable subscriptions but said “it seems more likely that the harm will take several years to materialize.” In April this year the 2nd US Circuit Court of Appeal held that Aereo's transmissions do not constitute 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."

However, that's not the end of the story: with conflicting judgements in California and the District of Columbia (where Aereo and fellow start up FilmOn remain unavailable) - with Circuit Judge Denny Chin's strident dissent to the 2nd Circuit's decision -  with a possible "split" in the appeal circuits - and with broadcasters saying that subscription revenue from cable companies is absolutely vital - it seems likely the Supreme Court will be asked to determine the matter.

To remind readers of Judge Chin's reasoning (with whom Circuit Judge Richard Wesley agreed) he would have reheard the case for four reasons:

- First, because the case raises “a question of exceptional importance” and because “en banc consideration is necessary to secure or maintain uniformity of the court’s decisions”

- Second, the text of the Copyright Act and its legislative history make clear that Aereo’s retransmissions are public performances.

- Third, Aereo’s reliance on Cablevision is misplaced because Cablevision was wrongly decided.

- Fourth even assuming Cablevision was correctly decided, Cablevision was misapplied and should not be extended to the circumstances Aereo’s business model.

And in early September, Judge Rosemary Collyer of the United States District Court for the District of Columbia issued a nationwide order blocking FilmOn (except the Second Circuit - New York, Connecticut and Vermont) indicating that she could see no meaningful difference between FilmOn’s retransmissions and those made by a traditional cable system - which clearly are deemed public performances under the US Copyright Act. And the broadcasters are not going to let this go: at the time of posting this blog came news that another lawsuit — this time in Utah — has been brought against Aereo. The copyright suit was filed by local TV stations and Fox Broadcasting Co again alleging that Aereo's re-transmissions of their programmes violate copyright.

As Iona reminded us back in April  - from a European perspective the New York and Boston decisions are also seemingly in conflict with the approach taken by the Court of Justice of the European Union in the TV Catchup case where it was held that television broadcasters may prohibit the retransmission of their programmes by another company via the internet and that retransmission constitutes, under certain conditions, ‘a communication to the public’ of works which must be authorised by the author. A vexed and commercially a very important question indeed for the Supreme Court.

Case C-607/11 ITV Broadcasting Ltd and Others v TVCatchup Ltd

WNET, Thirteen v. Aereo, Inc 2013 WL 1285591 (2nd.Cir.Apr, 1, 2013)

Cable News Network v CSC Holdings Inc., 08-448

There is a very good summary of the US battles on Lexology here