internet-tv
11 October 2013Copyright

US broadcaster fails to block Aereo

Internet TV streaming service Aereo has avoided a preliminary injunction in the latest rebuff to US broadcasters trying to block the site on copyright grounds.

The US District Court for the District of Massachusetts dismissed the request by Hearst Stations and rejected Aereo’s bid to transfer the case to a New York court.

New York-based Aereo intercepts TV broadcasts and retransmits them over the Internet, allowing subscribers to watch and record live (with a slight delay) TV.

Hearst, which owns Boston-based TV station WCVB, sued Aereo for copyright infringement in July and moved for a preliminary injunction against the site.

But in a ruling on October 8, Judge Gorton said Hearst had not demonstrated “a sufficient likelihood of success on the merits nor the requisite irreparable harm”.

Aereo chief executive Chet Kanojia welcomed the decision, saying that it “makes clear that that there is no reason that consumers should be limited to 1950s technology to access over-the-air broadcast television”.

Hearst did not respond to a request for comment.

The most “hotly contested” issue in the case, the judge said, is whether Aereo infringes WCVB’s rights to transmit works to the public. Hearst claimed Aereo’s services clearly fall within the statutory definition of public transmission, while Aereo argued its services are used privately.

Gorton continued: “It [Aereo] also argues that Hearst’s suggestion that the relevant performance is the copyrighted work reads the terms ‘a performance or display’ out of the statutory phrase ‘a performance or display of the work’.

“Aereo’s interpretation is a better reading of the statute because the ‘canon against surplusage’ requires this Court to give meaning to every statutory term if possible ... while the Transmit Clause is not a model of clarity, the Court finds at this juncture that Aereo presents the more plausible interpretation.”

Gorton also rejected Aereo’s bid to move the case to the US District Court for the Southern District of New York, where two similar cases involving Aereo are already being heard.

Because those actions are quite advanced, Gorton said, a transfer was “virtually guaranteed to either delay litigation or unfairly burden Hearst”.

The US Court of Appeals for the Second Circuit has weighed into one of those disputes, in April upholding a rejection of a preliminary injunction against Aereo. Claimants in the case included Fox and Disney.

The Second Circuit is the only circuit court to address whether the technology used by companies like Aereo infringes broadcasters’ public performance rights. While the court said it doesn’t, two US district courts, as well as a dissenting opinion in the circuit case, have said otherwise.

Bruce Ewing, partner at Dorsey & Whitney LLP, said the differences of opinion among district and appellate courts means “the way it is evolving is that Aereo can do business in some parts of the US, but not others”.

This is unhelpful for copyright owners, he said, but added it is “not uncommon for different courts to reach different conclusions”.

Some reports suggest that broadcasters including Fox are planning to petition the Supreme Court to review lower court rulings that have gone in Aereo’s favour.

But Ewing said that while the court may need to resolve differences of opinion at some point, outstanding litigation in the Aereo case means “we will leave off on that”.

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5 April 2013   A US appeals court has rejected copyright owners’ attempts to ban Internet TV streaming site Aereo – but one judge said the service clearly breached US copyright law.
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