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Media Alerts - WNET, Thirteen v. Aereo, Inc.; Am. Broad. Cos., Inc. v. Aereo, Inc.
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April 1, 2013
  WNET, Thirteen v. Aereo, Inc.; Am. Broad. Cos., Inc. v. Aereo, Inc.
Headline: Second Circuit Refuses to Bar Aereo's Transmission of Recorded Broadcast Television Programs

Area of Law: Copyright Infringement
Issue(s) Presented: Whether the District Court abused its discretion by not enjoining Defendant Aereo from transmitting recorded broadcast television programs to its subscribers while the programs are still airing on broadcast television.

Brief Summary: Aereo, Inc. enables subscribes who pay a monthly fee to watch broadcast television programs over the internet. Plaintiffs including ABC, CBS, NBC, Disney and WNET brought copyright infringement suits against Aereo, and moved for a preliminary injunction barring it from transmitting recorded broadcast television programs to its subscribers while the programs are still airing on broadcast television. The district court refused to grant the injunction, finding that the plaintiffs were unlikely to prevail at trial, and the Second Circuit affirmed.

To read the full opinion, please go to: http://www.ca2.uscourts.gov/de...625d52fa90d/1/hilite/

Extended Summary: Defendant Aereo's recording and subscription programs allow subscribers to record or watch television programs as the program is being aired, or after the program has been aired, via a computer or other internet-connected mobile device. Aereo's system operates with individual antennae for each subscriber: thus, each subscriber has a unique antenna that either records or directly transmits television programs.

Multiple plaintiffs, including ABC, CBS, NBC, Disney, WNET, and other holders of copyrights in programs that are broadcast on network television, sued Aereo in the United States District Court for the Southern District of New York, arguing that its transmissions infringed their exclusive right to publicly perform their works. They moved for a preliminary injunction barring Aereo from transmitting programs to its subscribers while the programs were still airing. The district court, however, denied the motion on grounds that the plaintiffs were unlikely to prevail at trial, given the Second Circuit's previous ruling in a similar case involving Cablevision's Digital Video Recorder (DVR) system.

The Second Circuit affirmed. The 1976 Copyright Act gives copyright owners several exclusive rights, including the exclusive right to "perform the copyright work publicly." The Act also states, in what is known as the "Transmit Clause," that to perform or display a work "publicly" means to "transmit or otherwise communicate a performance or display of work...to the public, by means of any device or process." In 2008, the Second Circuit concluded that Cablevision's DVR system did not violate the Transmit Clause because Cablevision's transmission of a recorded program to an individual subscriber was not a public performance.

The court concluded that this reasoning applied to the present case as well. "Cablevision's holding that Cablevision's transmissions of program recorded with its RS-DVR system were not public performances rested on two essential facts," the court explained. "First, the RS-DVR system created unique copies of every program a Cablevision customer wished to record. Second, the RS-DVR's transmission of the recorded program to a particular customer was generated from that unique copy...The same two features are present in Aereo's system." The court rejected the plaintiffs' attempts to distinguish Aereo's system from the DVR system, and said that it could not overrule Cablevision.

Judge Chin dissented from the Second Circuit's decision. He identified various differences between Aereo's system and Cablevision's systems, noting that Cablevision had promoted the DVR system as a way of recording and playing back programs, while Aereo promoted its service as a means for watching "live" broadcast television on the internet, despite its lack of a license to retransmit broadcast television.

To read the full opinion, please go to: http://www.ca2.uscourts.gov/de...625d52fa90d/1/hilite/

Panel: Circuit Judges Chin and Droney; District Judge Gleeson.

Argument (if known): 11/30/2012

Date of Issued Opinion: 04/01/2013
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Docket Number: 12-2786-cv, 12-2807-cv

Decided: Affirmed

Case Alert Author: Sarah Wegmueller

Counsel: PAUL M. SMITH, Steven B. Fabrizio, Scott B. Wilkens, Matthew E. Price, Jenner & Block LLP, Washington, DC; Richard L. Stone, Amy M. Gallegos, Jenner & Block LLP, Los Angeles, CA, for Plaintiffs-Appellants WNET, Thirteen, et al.; BRUCE P. KELLER, Jeffrey P. Cunard, Michael R. Potenza, Debevoise & Plimpton LLP, New York, NY, for Plaintiffs-Appellants Am. Broad. Cos., Inc., et al.; R. DAVID HOSP, John C. Englander, Mark S. Puzella,
Yvonne W. Chan, Erin M. Michael, Goodwin Procter LLP , Boston, MA; Michael S. Elkin, Thomas P. Lane, Winston & Strawn LLP, New York, NY; Seth D. Greenstein, Constantine Cannon LLP, Washington, DC; Jennifer A. Golinveaux, Winston & Strawn LLP, San Francisco, CA, for Defendant-Appellee.

Author of Opinion: Judge Droney

Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 04/01/2013 06:28 PM     2nd Circuit  

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