Breaking news - Aereo will go to the Supreme Court

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.

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.