Internet content-streaming has scored an important, albeit predictable victory, in the international fight over broadcast television control: The U.S. Second District Court of Appeal, as expected on Monday, affirmed a lower court decision to deny a preliminary injunction filed by broadcasters against Aereo, the upstart net-streaming company launched by media mogul Barry Diller.
In the 2-1 ruling, the appellate judges echoed the district court’s holding: Aereo is not publicly performing work because subscribers make single, unique copies and the audience for each copy is that single subscriber. The court rejected all of the plaintiff’s arguments, relying heavily on the Second Circuit precedent set in Cablevision.
In contrast, the appellate dissent by Judge Denny Chin, agreed with plaintiffs that there are significant differences between this case and Cablevision. Most importantly, his dissent points to Cablevision, wherein the defendant operated its DVR system on a belief that it could do so because of its underlying, compulsory license with broadcasters, pursuant to Section 111 of the Copyright Act of 1976. In contrast, Aereo operates its net-streaming service sans any license to show broadcast television content. Chin’s dissent also views the act’s “transmit clause” broadly, finding “any device or process” to include Aereo’s system.
Aereo — which some analysts say may be a means by which consumers unhook themselves from cable systems and costly subscriptions and for which Diller is discussing an expansion — employs complex technology, with dozens of individual antennas, a complicated system that Chin called a “Rube Goldberg” mechanism and a “sham.”
Now, the focus shifts to the U.S. Ninth Circuit Court of Appeals, where a decision on a similar streaming service is expected. In that case, a U.S. district court in California held that Aereokiller was publicly performing works on its service, in large part because Cablevision is not a binding precedent in the Ninth Circuit. Assuming the appellate court affirms that conclusion, the jurisdictional split could put the issue of net-streaming’s legality before the U.S. Supreme Court, though, based on recent developments, the chances of justices taking a streaming case may not be so high.
Still confused about how Aereo works? Check out this video: