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Aereo Decision

By Barry Werbin

In the ongoing battle between over-the-air-broadcasters and Aereo, as well as Aereo's copycat competitor FilmOn (formerly known AereoKiller), the U.S. District court of Massachusetts issued its anxiously awaited decision on October 8th. The court denied Hearst Stations Inc. (as the owner of a local TV station) a preliminary injunction against Aereo, which rolled out its retransmission streaming over-the-Internet antenna service in the Boston area in May and continues to aggressively expand into other parts of the country. The court sided with the Second Circuit's opinion in WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013), which held that Aereo's technology system incorporating single-user dedicated dime-size antennas resulted in the transmission of a unique copy of a copyrighted broadcast work to a single unique user, and was therefore not a "public performance" that infringed the broadcasters' exclusive right to publicly perform their works.

The Second Circuit previously affirmed the issuance of a preliminary injunction against Aereo in New York and denied the broadcasters' petition for a rehearing en banc, with a strong dissent from Judge Denny Chin. The broadcasters will file a petition for certiorari to the Supreme Court.

Meanwhile, district courts in the District of Columbia [Fox Television Stations, Inc. v. FilmOnX LLC, 2013 WL 4763414 (D.D.C. Sept, 5, 2013)] and California [Fox Television Stations, Inc,. v. BarryDriller Content Systems PLC, 915 F. Supp. 2d 1138 (C.D. Cal. 2012)] have both ruled in favor of a group of broadcasters in their separate suits against FilmOn, with the D.C. court recently issuing a nationwide injunction (excluding the Second Circuit) against FilmOn. Oral argument before the Ninth Circuit recently took place and a decision from that Circuit is imminent. On October 7th, a group of broadcasters sued Aereo in the District Court of Utah.

In its decision, the District Court of Massachusetts essentially adopted the reasoning of the Second Circuit but without an extensive discussion, citing to the legislative history behind the so-called "Transmit Clause" in Section 101 of the 1976 Copyright Act, which in the court's view favored Aereo's "unique copy/unique user" theory that was essentially adopted by the Second Circuit.

The Boston-based court also found that Aereo likely did not violate the broadcasters' exclusive right to make copies of their broadcast content when Aereo made more than "transitory" copies of those works on hard drives every time one of its subscribers chose to watch or record a program. The court found that Aereo itself did not engage in any "volitional conduct"; rather, it was "likely that the user supplies the necessary volitional conduct to make the copy." However, the court found that this was "a closer question than the issue of public performance", and that discovery "could disclose that Aereo's service infringes WCBV's right to reproduce its work."

Finally, the court found that Aereo's transmissions did not infringe the broadcasters' exclusive distribution right because courts have interpreted the distribution clause to require the "actual dissemination" of copies. As Aereo was not permitting the downloading of programming but only its streaming, Aereo was deemed to be "performing," rather than "distributing," copyrighted works. The court also summarily dismissed a claim that Aereo's transmissions created derivative works by converting the audio/video content into a different digital format compatible with Internet streaming.

With respect to the request for injunctive relief, the court further found that the balance of hardships did not favor one side over the other because each side made cogent arguments concerning irreparable harm, and that these respective contentions "balance out."

A copy of the decision is available here:Aereo-Boston-Ruling.pdf

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This page contains a single entry from the blog posted on October 10, 2013 4:38 PM.

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