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Aereo Injunction Sets Stage for Supremes

Mari Silbey
2/21/2014
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When the case against Aereo heads to the US Supreme Court on April 22, the video company's fate will be determined by whether the justices decide that Aereo is legally retransmitting over-the-air television signals.

In this week's case in front of the US District Court of Utah, however, Judge Dale A. Kimball also had to decide whether Aereo Inc. has the potential to cause irreparable harm to broadcasters. On both counts, Judge Kimball ruled against Aereo. The judge called Aereo's retransmission of television signals "indistinguishable from a cable company" and issued a preliminary injunction, shutting down service in several western states until the case is heard by the US Supreme Court this spring.

Aereo's legal argument against copyright infringement is that, just as with Cablevision Systems Corp. (NYSE: CVC)'s remote-storage network DVR service, it is delivering individual, private performances of television content. Each Aereo subscriber is assigned his or her own personal antenna and video stream. Broadcasters, however, dispute that claim by pointing out that retransmission services are meant to be included in the defined scope of a public performance. Aereo, they declare, is therefore skirting the law by not paying retransmission fees. (See Aereo Headed for Supreme Court?.)

Unlike in Utah this week, an earlier ruling by the US Second Circuit Court found Aereo not guilty of copyright violation. The Supreme Court will have to arbitrate between the different circuit courts and decide which interpretation of the law has the most merit. If it finds in broadcasters' favor, Aereo's operations will be seriously curtailed, if not completely halted. If the court sides with Aereo, however, broadcasters risk losing out on retransmission fees that SNL Kagan predicts will top $6 billion by 2018. (See 'Free' TV Model Under Threat.)

The stakes are high on both sides of the legal argument, and only the Supreme Court can deliver the final verdict. The countdown to April 22 is on.

Related posts:

— Mari Silbey, special to Light Reading

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mhhf1ve
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mhhf1ve,
User Rank: Light Sabre
2/27/2014 | 6:46:11 PM
If you're into legal precedents
For an excellent summary of the legal terms and debates involved here, this is a great read:

http://www.fas.org/sgp/crs/misc/R43359.pdf

It covers Aereo and FilmOn and the key parts of the 1976 Copyright Act.
Mitch Wagner
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Mitch Wagner,
User Rank: Lightning
2/25/2014 | 4:19:28 PM
Re: Underdog
Jessie Morrow -  An easy mistake to make. You are no doubt confused by the waxed mustaches and fixie bikes.
Liz Greenberg
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Liz Greenberg,
User Rank: Light Sabre
2/24/2014 | 5:41:17 PM
Re: Underdog
@seven, either way a shake up of the status quo would be great!
brookseven
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brookseven,
User Rank: Light Sabre
2/24/2014 | 4:22:27 PM
Re: Underdog
Liz,

The cable companies don't force most of the packaging.  That comes from the content owners.

seven

 
Jessie Morrow
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Jessie Morrow,
User Rank: Lightning
2/24/2014 | 3:44:36 PM
Re: Underdog
My apologies, FakeMW, the most rudimentary checking and I see that Aereo is far from a pop-up start-up. No hipsters in hoodies or Trilbys at Aereo board meetings.
Mitch Wagner
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Mitch Wagner,
User Rank: Lightning
2/24/2014 | 3:04:11 PM
Re: Underdog

Jessie Morrow - "While it is very easy to root for the underdog Aereo over Big Cable I can't see how the Supreme Court can uphold Aereo's right to continue to retransmit. What am I missing here?"

Aero is hardly the underdog here. This is basically a case of big money versus big money.

Aero's technology infrastructure is explicitly designed to violate the spirit of the law while upholding its letter. The Supreme Court is going to have to decide whether that's illegal.

wanlord
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wanlord,
User Rank: Light Sabre
2/24/2014 | 1:33:43 PM
Re: Utah Judge
The 1976 Act was enacted as a complete overhaul of its predecessor, theCopyright Act of 1909, to respond to 'significant changes in technology [that] affected theoperation of the copyright law."

 

Hmm, sounds like the 1976 Act needs a complete overhaul also. Think the technology has changed a bit  in 35+ years!!!!!
wanlord
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wanlord,
User Rank: Light Sabre
2/24/2014 | 1:25:26 PM
Re: Utah Judge
@danielcawrey, it is very fair. competitors do it in a less expensive way, one receiver to millions, vs. Aereo having one receiver per subscriber, doing it in a much smarter way.


As for the court case, I don't like the wording "capture" in "Aereo's system captures over-the-air broadcasts". Why, because it makes it sound like they are doing something to the signal, which they are not, just receiving it and transmitting to the viewer. They are not capturing anything. Capture would mean they are preventing anybody else from getting it. They are receiving it, just like anybody else with an antenna, while its still out there for use.

cap·ture (kăp′chər)
tr.v.cap·tured, cap·tur·ing, cap·tures
1. To take captive, as by force or craft; seize.
2. To gain possession or control of, as in a game or contest: capture the queen in chess; captured the liberal vote.
3. To attract and hold: tales of adventure that capture the imagination.
4. To succeed in preserving in lasting form: capture a likeness in a painting.
n.
1. The act of catching, taking, or winning, as by force or skill.
2. One that has been seized, caught, or won; a catch or prize.
3. Physics The phenomenon in which an atom or a nucleus absorbs a subatomic particle, often with the subsequent emission of radiation.
danielcawrey
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danielcawrey,
User Rank: Light Sabre
2/22/2014 | 10:03:50 PM
Re: Utah Judge
This is an interesting case. 

On one hand, Aereo is trying to disrupt the incumbent system that exists. And I'm sure most people would have to agree that innovation in this industry is staid. 

Yet on the other hand, Aereo is not paying for retransmission fees. That's not really fair to its competitors and gives it an unfair advantage. 
DOShea
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DOShea,
User Rank: Blogger
2/22/2014 | 9:40:36 PM
Re: Underdog
The Cablevision network DVR comparsion to what Aereo's doing is interesting and totally relevant, and given the the ruling in that case was that the content playback essentially amounted to a private performance, rather than a public one, I don't see how Aereo should lose that particular argument. If it only came down to just that... I don't see these judges ready to permit a revolution to begin.
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