ABC v. Aereo, Inc. When is Internet Distribution a "Public Performance" under Copyright Law?
In reaching this conclusion, the District Court relied heavily on the Second Circuit’s 2008 Cablevision decision , which the court cited as controlling authority that favored Aereo’s legal position. A critical legal issue presented by both the Cablevision and Aero cases involve interpreting the “public performance” clause of the Copyright Act in the context of new technologies that facilitate delivery of television programming to consumers who increasingly want to watch TV whenever, wherever and however they choose.
The Court’s decision to deny the preliminary injunction has already been appealed to the Second Circuit, which will thus be given the opportunity to further consider some of the more challenging sections of the Copyright Act in the online environment. In Cablevision, the Second Circuit reversed a thoughtful district court opinion by Judge Chin (who was since elevated to the Second Circuit) that concluded that the Cablevision remote server (RS) DVR use did result in copyright infringement. So it is fair to say the standard for infringement is an evolving one, and the decision of the Second Circuit in the Aereo case could be of great significance, both from a legal and business perspective.