District Court Grants a Preliminary Injunction Against Aereo's Live TV Features

Copyright Patent
By: Olga Slobodyanyuk, Edited by: Saukshmya Trichi American Broadcasting Companies, Inc. v. Aereo, Inc., No. 15-cv-1543 (S.D.N.Y. Oct. 23, 2014) Opinion and Order hosted by National Association of Broadcasters. aereo_antenna_array1On October 23, the SDNY District Court granted a preliminary injunction restraining Aereo from retransmitting Live TV programs. In doing so, the Court rejected Aereo's claim that it offers a cable TV service thus being entitled to a compulsory license for the copyrighted programs. By virtue of the injunction  Aereo is prohibited from “streaming, transmitting, retransmitting, or otherwise publicly performing any Copyrighted Program over the Internet (through websites such as aereo.com), or by means of any device or process throughout the United States of America, while the Copyrighted Programming is still being broadcast." Aereo is a tech start-up which offered  live and time-shifted streams of TV shows over the Internet through tiny remote antennas that captured TV signals upon the subscribers' requests. In June, the Supreme Court held that Aereo's service of streaming TV shows amounts to  a public performance under the ‘Transmit Clause’ of the Copyright Act. American Broadcasting Cos. v. Aereo, Inc. 134 S.Ct. 2498 (Supreme Court of the United States, June 25, 2014) Slip Opinion. Digest report of the case for further details. Following the Supreme Court ruling, and particularly relying on oral argument in which the Supreme Court compared Aereo to a cable company in determining that Aereo was performing publicly, Aereo tried to argue that it was a cable system entitled to a compulsory license. However, according to Judge Nathan, “while all cable systems may perform publicly, not all entities that perform publicly are necessarily cable systems, and nothing in the Supreme Court’s opinion indicates otherwise.” According to the Court, because “the Supreme Court has concluded that Aereo performs publicly when it retransmits plaintiffs’ content live over the Internet and thus infringes plaintiffs’ copyrighted works, . . . Aereo cannot claim harm from its inability to continue infringing plaintiffs’ copyrights.” (American Broadcasting Companies, Inc., No. 15-cv-1543, Pg. 13) In addition to its live transmissions, Aereo also allows its subscribers to record TV shows to watch them later. The nation-wide injunction granted however does not extend to Aereo's DVR, or time-shifting services. Judge Nathan declined to grant the broadcaster's request for such a broad injunction since this is the first time they asked to restrict Aereo beyond its live retransmission services. She reserved this issue for a final ruling later, as “there may be both factual and legal nuances unique to fully time-shifted retransmission that have not been fleshed out that may influence this Court’s application of the Supreme Court’s holding to what is essentially the remote DVR aspect of Aereo’s operations.” (American Broadcasting Companies, Inc., No. 15-cv-1543, Pg. 15) In granting the injunction, Judge Nathan ruled that the broadcast industry was likely to show infringement and that it would be seriously harmed by continuous live retransmissions. She directed the parties to move fact-finding on an expedited schedule towards a decision regarding a permanent injunction and the DVR features. The District Court's injunction is covered in further detail by Ars Technica, PC Mag, and SCOTUSblog. The Volokh Conspiracy criticizes U.S. copyright doctrine based on the result of this injunction. Gigaom remains somewhat optimistic about the viability of Aereo's DVR features, whereas Techdirt finds that the District Court is helping the Supreme Court directive that “Aereo should die.”