TV Broadcasters Aim for Broad Injunction Against Aereo

Aereo CEO Chet Kanojia - P 2013

 Aereo CEO Chet Kanojia - P 2013

Having prevailed at the U.S. Supreme Court, television broadcasters are now proposing that a New York federal judge issue a preliminary injunction against Aereo that would prohibit the digital service from "streaming, transmitting, retransmitting, or otherwise publicly performing any Copyrighted Programming over the Internet...or by means of any device or process throughout the United States of America."

The proposal comes after the high court ruled June 25 that Aereo publicly performs copyrighted works without authority.

In the aftermath of that ruling, the Barry Diller-backed company, which attempted to capture over-the-air TV signals and transmit them to users' digital devices, looked to find some bright side from Justice Stephen Breyer's opinion that "behind-the-scenes technological differences do not distinguish Aereo's system from cable systems, which do publicly perform."

If Aereo is likened to a cable system, then it should be allowed to pay compulsory license fees under Section 111 of the Copyright Act, attorneys for the company argued.

The U.S. Copyright Office didn't agree with the position, pointing to a prior TV streamer named ivi that attempted to do likewise without legal success. Nevertheless, the Copyright Office provisionally accepted an application with knowledge that a full determination would soon be made in court.

Along with the broadcasters' proposed injunction, the plaintiffs spell out their arguments why Aereo doesn't qualify for a compulsory license. According to a memorandum supporting the injunction, the broadcasters say "Aereo III" — shorthand for the Supreme Court's ruling — was intentionally broad to encompass public performance by any device or process.

"Although the Court was clearly aware of Section 111, as the Justices raised it during oral argument, the Aereo III opinion notably does not say that Aereo is a cable system for purposes of Section 111 or that Aereo is entitled to the enormous benefits of the Section 111 compulsory license," states the memorandum (read here). "The issue was simply not before the Court in Aereo III because Aereo had repeatedly denied being a cable system entitled to the Section 111 license."

The broadcasters then argue that the Supreme Court didn't overrule the ivi precedent and point to another judge's decision involving Aereo competitor FilmOn three weeks ago.

"Aereo attempts to make much of the statement in Aereo III that 'Aereo’s practices ... [are] highly similar to those of [cable systems],'" the memorandum continues. "But simply retransmitting broadcast programming, while sufficient to bring Aereo within the broad Transmit Clause, is not sufficient to bring Aereo within the narrow Section 111 license. Otherwise any broadcast retransmission service whatsoever, including the proverbial Internet-savvy 'kid in the dorm room,' would qualify for the Section 111 license."

The broadcasters also are attempting to cut off any attempt by Aereo to limit the scope of the injunction to “near-simultaneous” retransmissions. They argue, "Even with a time delay, Aereo’s service still involves retransmitting contemporaneously-perceptible images and sounds of Plaintiffs’ programs to the public without authorization."

Aereo has said that if it isn't able to resume operations, it likely won't survive. According to filings at the Copyright Office, Aereo had 77,596 subscribers at the end of 2013.

Twitter: @eriqgardner