Judge Issues Aereo Injunction, Stops Short of Enjoining Time-Shifting

The ruling mostly grants what the TV broadcasters were seeking after the Supreme Court issued its own opinion

U.S. District Judge Alison Nathan has issued the long-awaited injunction over Aereo, the upstart service that once promised to pry open the delivery of television signals so that customers could access the major networks on digital devices.

In a ruling on Thursday, she writes that "in light of the Supreme Court's holding, Plaintiffs have demonstrated a likelihood of success on the merits, and Aereo has not demonstrated a likelihood of success on the merits of its novel affirmative defenses."

The injunction enjoins Aereo 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."

That's mostly what the TV broadcasters were hoping to get after Supreme Court Justice Stephen Breyer offered a majority opinion last June that held that Aereo's system of capturing over-the-air TV signals and relaying individual copies of programming to its subscribers constituted a violation of public performance rights.

However, in adding the clause, "while the Copyrighted Programming is still being broadcast," Judge Nathan addresses the sensitive issue of whether Aereo can still operate by delivering time-shifted programming. The scope of the injunction was the biggest bit of drama emanating from a hearing on October 15 where the judge considered arguments by the parties. Aereo's attorney urged Judge Nathan to come to the conclusion that the Supreme Court hadn't overruled Cablevision — a Second Circuit ruling on the topic of remote DVR — with respect to the delivery of delayed recordings captured by the defendant's antennas.

"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," Judge Nathan writes in her opinion. "Therefore, while Plaintiffs may have a viable argument that even Aereo's fully time-shifted retransmission of Plaintiffs' copyrighted works violates Plaintiffs' public performance right, the Court will not reach the issue at this preliminary stage of the litigation. Plaintiffs will be held to their earlier decision, strategic or otherwise, to seek a preliminary injunction limited in scope to enjoining retransmission of their copyrighted works while the works are still being broadcast."

The judge then offers more clarity on what she intends with the injunction.

"Likewise, Aereo cannot limit the scope of the preliminary injunction to anything short of the complete airing of the broadcast despite its contention at oral argument that the Supreme Court intended 'near-live retransmission' to mean something less than a ten-minute delay."

Elsewhere in the ruling, Judge Nathan considers Aereo's argument that since the Supreme Court has likened it to a cable operator, that judgment allows Aereo to make compulsory license payments under Section 111 of the Copyright Act.

"To begin with, Aereo's argument suffers from the fallacy that simply because an entity performs copyrighted works in a way similar to cable systems it must then be deemed a cable system for all other purposes of the Copyright Act," the judge responds.

Judge Nathan sees a difference between a service that is like a cable system and a service that is a cable system. She looks at the adoption of the Transmit Clause in 1976, which had the effect of overruling two prior Supreme Court decisions (Fortnightly, Teleprompter), and interprets amendments to copyright law back then as addressing equipment providers that only enhanced viewers' viewing capabilities. She writes, "Stated simply, 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."

She also points to other past cases like one concerning ivi, a company that wished to stream television over the Internet, and while Aereo attempted to articulate how it has been careful to only transmit local rather than national programming, the judge notes that technical safeguards "are easily overridden," and further, there's no indication that Congress ever intended to extend the Section 111 compulsory license to cover internet retransmission services.

Finally, the judge waives off Aereo's argument about being entitled to the safe harbor provisions of the Digital Millennium Copyright Act by knocking the defending for failing to assert how it has satisfied all of the eligibility conditions. She also won't re-open consideration of her prior finding of irreparable harm tied to the prospect of cord cutting, loss of control over content, and damage to broadcasters' relationships with their partners.

Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner

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