It was confirmed on Friday that the U.S. Supreme Court will hear broadcasters’ challenges to “TV anywhere” startup Aereo. The case, against Aero, is being led by ABC but plaintiffs also include CBS, NBC, Fox and Disney Telemundo. In 2012, U.S. District Judge Alison Nathan relied on the previous Cablevision case and refused to issue an injunction to halt Aereo. A split panel of the 2nd Circuit affirmed her decision, again 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."
As Iona commented in April 2013, it's interesting to 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. In Cablevision (Cable News Network v CSC Holdings Inc., 08-448) the Supreme Court refused to block a new digital video recording (DVR) system that could make it even easier for viewers to bypass commercials
Aereo argues that it is not operating illegally. The company assigns its subscribers a remote antenna (the so called "rabbit ears"), which captures and streams local TV signals. After a delay of at least 6 seconds, it streams to the viewer. Aereo claims that the customer is therefor in control, as the rabbit ears act as a remote antenna for each subscriber, which makes similar to a private service - like time-shifting on a VCR or DVR.
Aereo has now raised an additional round of financing of $34 million for further expansion.