During oral arguments on the broadcast networks’ request for a preliminary injunction to shut down the Aereo web streaming service, a Manhattan federal district court judge questioned the networks on the extent to which the Second Circuit’s 2008 decision in Cartoon Network v. CSC Holdings applies to the case at hand. Aereo, an Internet video venture backed by Barry Diller, was accused of copyright infringement by the networks in March after launching a new service in the New York City area that uses thousands of miniature antennas to intercept live over-the-air local broadcasts and transmit those broadcasts through the Internet to subscriber PCs, mobile smart phones, tablet computers, and similar devices. Because streaming is accomplished through distinct, dime-size antennas that are assigned to each individual subscriber, Aereo contends that its service does not violate retransmission or copyright laws. However, in addition to claiming copyright infringement, the networks also charge that Aereo’s service poses a threat to free, over-theair programming because Aereo’s business model—if upheld—would provide cable system operators and other multichannel video program distributors with an incentive to challenge the payment of retransmission fees. The applicability of Cartoon Network v. CSC Holdings (commonly known as the Cablevision decision) took center stage during two days of oral arguments before the court that wrapped up last Thursday. In that case, the Second Circuit determined that Cablevision’s DVR service, which stores programs remotely on the cable company’s servers at the subscriber’s request, does not violate copyright law. The appeals court also concluded that the act of replaying programming after a live performance does not necessarily make such replay a public performance for the purposes of copyright law. Commenting on the case at hand, Judge Alison Nathan quipped to Aereo’s lawyers that “technology has beaten the public performance restriction” as she asked counsel for the networks to elaborate on “how [the Cablevision] analysis should affect my decision.” While counsel for Aereo outlined the various ways in which Aereo’s service resembles Cablevision’s remote DVR service, one lawyer appearing on behalf of the networks maintained that, unlike Cablevision subscribers, who copy authorized broadcast streams with their remote DVRs, Aereo lacks authority from the networks to broadcast such streams in the first place. Another network lawyer advised the court that, because the programming streamed by Aereo is accessed and viewed by users in real time, such programming qualifies as public performances that are restricted under copyright law. Judge Nathan is expected to hand down her ruling next month.
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Lawyers debate applicability of Cablevision decision to Aereo case
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