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Notwithstanding the fact that the U.S. Supreme Court will ultimately decide the fate of Aereo, a Utah judge gave TV broadcasters a reason to smile Wednesday.
U.S. District Judge Dale Kimball has ruled that Fox Broadcasting and local stations are likely to succeed on the merits of their copyright claim and be irreparably harmed by Aereo. As a result, the judge has granted a preliminary injunction against Aereo’s service that captures over-the-air TV signals and transmits them to subscribers’ digital devices.
The judge also has granted a stay of the proceedings pending the Supreme Court’s decision. The high court is scheduled to hear the case on April 22.
“This is a significant win for both broadcasters and content owners,” says Fox in a statement. “We are very pleased that the U.S. District Court in Utah has granted our request for a preliminary injunction. This injunction will prohibit Aereo from stealing our broadcast signal in Utah, New Mexico, Colorado, Oklahoma, Wyoming and Montana.”
The development marks Aereo’s first significant legal loss. Since launching in March of 2012, Aereo has staved off requested injunctions in New York and Boston and also prevailed at the Second Circuit Court of Appeals.
The core controversy in these legal battles is whether Aereo is making a “public” or “private” performance of broadcasters’ content.
Aereo, backed by Barry Diller, contends that its service is private in nature because each subscriber is assigned a single unique copy and that only that individual subscriber can receive a transmission. The interpretation is largely based upon an earlier Second Circuit ruling concerning Cablevision’s remote-storage DVR, deemed to not be “to the public.”
Judge Kimball takes the opportunity to blast this interpretation.
“To reach its conclusion that the recorded copies for later playback did not require an additional license as a separate public performance, the Second Circuit proceeded to spin the language of the Transmit Clause, the legislative history and prior case law into a complicated web,” writes the judge. “The court focused on discerning who is ‘capable of receiving’ the performance to determine whether a performance is transmitted to the public. However, such a focus is not supported by the language of the statute. The clause states clearly that it applies to any performance made available to the public. Paying subscribers would certainly fall within the ambit of ‘a substantial number of persons outside of a normal circle of a family and its social acquaintances’ and within a general understanding of the term ‘public.’ ”
The judge says he is not persuaded by the Second Circuit’s reasoning in the Aereo case, but he does like what Circuit Judge Denny Chen said in dissent.
Judge Kimball writes, “This court agrees with Judge Chin that ‘[b]y any reasonable construction of the statute, Aereo is engaging in public performances’ when it intercepts and retransmits copyrighted programs to paying strangers.”
Here’s the full ruling :
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