By Sahil Patel
For a company that won pretty much every case during the beginning stages of its multi-year legal battle against TV broadcasters, Aereo now can’t buy a win — and looks increasingly down and out for the count.
A federal judge in New York has granted a nationwide preliminary injunction against the streaming service, which launched on the promise of delivering live broadcast television over the web.
Specifically, the injunction enjoins Aereo from “streaming, transmitting, retransmitting, or otherwise publicly performing any Copyrighted Program over the Internet (through websites such as Aereo.com), or by means of any device or process throughout the United States of America, while the Copyrighted Programming is still being broadcast,” said US District Judge Alison Nathan in her ruling.
Nathan stopped short of denying Aereo’s ability to retransmit broadcast programming on a time-shifted basis.
“There may be both factual and legal nuances unique to fully time-shifted retransmission that have not been fleshed out that may influence this Court’s application of the Supreme Court’s holding to what is essentially the remote DVR aspect of Aereo’s operations,” the judge said. “Therefore, while Plaintiffs may have a viable argument that even Aereo’s fully timeshifted retransmission of Plaintiffs’ copyrighted works violates Plaintiffs’ public performance right, the Court will not reach the issue at this preliminary stage of the litigation.”
In other words, the DVR-ability of Aereo’s streaming service is a separate battle that the two sides will still need to work out.
That said, it’s still a major victory for ABC, Fox, CBS, NBCUniversal, Telemundo, and Fox. After a protracted legal battle, the broadcasters won a major victory at the hands of the Supreme Court, which ruled in June that Aereo was infringing on broadcasters’ copyrights by capturing live programs through antennas and retransmitting them to subscribers over the web — without paying any fees.
A few days after the decision, Aereo shut down its service and attempted to fight back by stating that the Supreme Court ruling gave it the option of being reclassified as a cable TV system, and as a result, eligible for a license under the Copyright Act.
Nathan wasn’t buying.
“To begin with, Aereo’s argument suffers from the fallacy that simply because an entity performs copyrighted works in a way similar to cable systems it must then be deemed a cable system for all other purposes of the Copyright Act,” she said. “The Supreme Court in Aereo III did not imply, much less hold, that simply because an entity performs publicly in much the same way as a CATV system, it is necessarily a cable system entitled to a compulsory license.”
In a statement, an Aereo spokesperson said the company is “reviewing the decision and evaluating our options moving forward.” With every new ruling, there seem to be less and less options for the company.