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ABC v. Aereo, Inc. When is Internet Distribution a "Public Performance" under Copyright Law?

15 August 2012
On July 11, 2012, a U.S. District Court judge in New York refused to grant a preliminary injunction to a group of broadcasters and content owners who are seeking to stop Aereo from providing its subscribers with access to copyrighted content over the Internet.   The plaintiffs allege that Aereo, which has not obtained a license to distribute the broadcast signals is infringing plaintiffs’ copyrights.  While a preliminary injunction is an “extraordinary” remedy, requiring the moving party to present both a strong case under the applicable law and compelling equitable arguments, in this case the primary grounds upon which the Judge issued her decision was her determination that the plaintiffs are unlikely to succeed on the merits of their copyright infringement claim.

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.

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Stephen Bennett

Stephen Bennett,


Steve Kay

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