Author: Brian R. Westley
Breaking with the Second Circuit, a federal judge in Utah has granted a preliminary injunction against Aereo until the Supreme Court resolves whether Aereo’s retransmission of television shows infringes broadcasters’ copyrights. Cmty. Television of Utah, LLC v. Aereo, Inc., Civ. No. 13-cv-910, 2014 WL 642828 (D. Utah Feb. 19, 2014).
The Utah court ruled that a collection of local and national broadcasters are likely to prevail on their claims that Aereo is violating their exclusive “public performance” rights. The injunction applies to Aereo in the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
Aereo argued that because it retransmits individual copies of over-the-air broadcasts to subscribers via individually-assigned antennas, its service is analogous to a subscriber using an antenna in their own home. Therefore, according to Aereo, its service is not a public performance because it merely allows its subscribers to view the copyrighted TV shows privately. The court disagreed, explaining that Aereo’s retransmission of television shows is indistinguishable from cable companies, which are required to pay royalties to carry broadcasters’ content under the Copyright Act’s Transmit Clause. The clause applies to “any device or process” that transmits a performance to the public, whether the public receives the performance “in the same place or in separate places and at the same time or at different times.”
The court’s ruling is the first legal setback for Aereo. In April 2013, the Second Circuit affirmed the denial of a preliminary injunction against Aereo in WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2nd Cir. 2013). The Supreme Court has since granted certiorari. And in October 2013, the District of Massachusetts denied a local television station’s request for an injunction against Aereo, ruling that the station failed to show a substantial likelihood of success on the merits. Hearst Stations Inc. v. Aereo, Inc., 2013 WL 5604284 (D. Mass. Oct. 8, 2013).
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