What the Judge in the Aereo Case Didn't Rule On


While Aereo is still in business for now after a federal judge declined to grant broadcasters’ request to shut it down, her decision was narrow — and specifically excluded several important questions pertaining to Aereo’s potential liability for copyright infringement (see Some Cable Ops Rooting For Aereo In Clash With Broadcasters and Judge Denies Request To Shut Down Aereo).

Judge Alison Nathan of the U.S. District Court for the Southern District of New York based her decision on the precedent set by the Second Circuit Court of Appeals’ Cablevision Remote Storage DVR ruling: “The overall factual similarity of Aereo’s service to Cablevision… suggests that Aereo’s service falls within the core of what [the] Cablevision [decision] held lawful.”

Essentially, she ruled, just as Cablevision’s RS-DVR dedicates disk storage for each individual subscriber — which under the Second Circuit’s decision means it’s not a public performance — Aereo’s individual antennas process individual program streams for individual users. “As in Cablevision, the functionality of Aereo’s system from the user’s perspective substantially mirrors that available using devices such as a DVR or Slingbox, which allow users to access free, over-the-air broadcast television on mobile Internet devices of their choosing,” the judge opined.

However, Judge Nathan discussed several points that her ruling did not weigh in on — and noted that “the Court’s holding that Plaintiffs have not demonstrated a likelihood of success is limited.”

“First, the Court need not, and does not, accept Aereo’s position that the creation of any fixed copy from which a transmission is made always defeats a claim for a violation of the public performance right,” Judge Nathan wrote. “This position would eviscerate the transmit clause given the ease of making reproductions before transmitting digital data, and [the] Cablevision [RS-DVR decision] does not require such a far sweep.”

Neither did the court “need to resolve Aereo’s argument that their antennas, standing alone, defeat Plaintiffs’ claim that Aereo engages in a public performance. … There may be cases in which copies are purely facilitory, such as true buffer copies or copies that serve no function whatsoever other than to pass along a clearly identifiable ‘master’ copy from which the transmission is made. These facts, however, are not before the Court today.”

Finally, Judge Nathan wrote, “Aereo has argued that it cannot be held liable for copyright infringement because it does not engage in ‘volitional conduct’ sufficient to impose such liability, contending that it is Aereo’s users, rather than Aereo itself, who direct the operation of Aereo’s system.” But the court “need not reach the issue of whether Aereo escapes liability because it is ‘the consumer, not Aereo, who makes the transmissions that Plaintiffs complain of.’”

Those issues may arise on appeal; the broadcasters in the case on Thursday formally filed an appeal with the Second Circuit.

The judge’s reliance on the RS-DVR decision in the Aereo ruling was specious, according to Lee Spieckerman, CEO of SpieckermanMedia, a Dallas-based strategic communications consulting firm and cable TV network company.

“Unbelievably, the obvious difference between Cablevision and Aereo escaped Judge Nathan: Cablevision has retransmission licensing agreements with every TV station on its system. So Cablevision subscribers can only use the ‘network DVR’ to record and play back content from TV stations with which Cablevision has a contract,” Spieckerman wrote in a blog.

But Judge Nathan said she was required to adhere to the Second Circuit’s RS-DVR decision, even though the broadcasters “raise[d] the specter of congressional intervention should this Court find that Aereo’s system is lawful” arguing that Congress meant for “the transmit clause be construed broadly.”

“[T]o the extent that a court concludes that the Copyright Act does not cover an activity, it is Congress’s prerogative to step in if it ‘view[s] this result as an “injustice,”‘” she wrote.

The full ruling denying the broadcasters’ preliminary injunction motion is available here.


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