Advanced Television

Aereo wins retransmission ruling

April 2, 2013

The US’s Second Circuit Court of Appeals has issued a ruling in favour of Barry Diller-backed Internet TV service Aereo, affirming in all respects the District Court’s denial of the motions by the plaintiffs, a group of 17 network broadcasters, for a preliminary injunction against Aereo. The Appeals Court in Wnet et al. v. Aereo, Inc. (12-2786-cv) and ABC et al. v. Aereo, Inc (12-2807-CV), citing the language of the Copyright Act, its legislative history and the Court’s prior decisions, including the Cartoon Network LP, LLLP v. CSC Holdings, Inc, 536 F.3rd 121 (2nd Cir 2008) (“Cablevision”) decision, held that transmissions made by consumers using the Aereo technology are not public performances under the Copyright Act.

As stated in the Court of Appeals decision, “We conclude 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.”

The Court, in relying on its prior decision in Cablevision, noted the critical importance of the ability of businesses to rely on existing legal precedent. The Court found that, like Aereo, it appears that many cloud-based businesses that allow users to store their own content in the cloud “have relied on Cablevision as an authoritative interpretation of the Transmit Clause” of the Copyright Act.

“Today’s decision from the Second Circuit Court of Appeals again validates that Aereo’s technology falls squarely within the law and that’s a great thing for consumers who want more choice and flexibility in how, when and where they can watch television,” said Chet Kanojia, Aereo CEO and Founder. “Today’s ruling to uphold Judge Nathan’s decision sends a powerful message that consumer access to free-to-air broadcast television is still meaningful in this country and that the promise and commitment made by the broadcasters to programme in the public interest in exchange for the public’s spectrum, remains an important part of our American fabric.”

Kanojia said that although Aereo was “a small start-up” it had always believed in standing up and fighting for its consumers. “We are grateful for the court’s thoughtful analysis and decision and we look forward to continuing to build a successful business that puts consumers first,” he stated.

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