Aereo finally lost a court decision.  The US District Court in Utah released a well-reasoned decisionfinding that the service, by transmitting via the Internet over-the-air TV programming to subscribers without any consent from the TV stations or their program suppliers, violated the copyrights that the stations have in their programming.  Specifically, the Court found that the transmissions were public performances, the very issue to be determined later this year by the US Supreme Court when it considers the decision of the Second Circuit Court of Appeals in New York finding that no public performance was involved in the Aereo transmissions.  (See our summary of the NY decision here).  The Utah Court issued an injunction preventing Aereo from operating in Utah until the issue is decided by the Supreme Court. 

This is the first case that Aereo itself has lost, also winning a favorable decision from a District Court in Boston which essentially followed the Second Circuits reasoning (see our summary of the Boston decision here).  But the Aereo copycat service, FilmOn X, which presented essentially the same legal issues to Courts, has lost two decisions, one in California and one in Washington DC (see our summary of the DC decision here), both courts finding that the public performance right was implicated by Aereo’s transmissions.  Oral arguments in the Supreme Court are to be held in April, with a decision in the case expected before the Court adjourns for its summer recess in July.  Does this Utah decision serve as a preview of the upcoming Supreme Court decision?

The decision takes much the same tack in reviewing the law as did the DC Court in the FilmOn X case.  The issue before these Courts is whether the transmission by Aereo is a transmission to the “public”, hence violating the public performance right of the broadcaster as it is sent to the consumer without the station’s consent, or whether it is a “private performance” not requiring consent of the broadcaster.  Aereo’s argument has been that its system is set up so that transmissions are only made when individually requested by a user, so those transmissions, being user-directed, are one-to-one transmissions and thus private performances, not public performances to many diverse people in the television audience.  Relying on its decision in the Cablevision v Cartoon Network case, allowing Cablevision to set up a remote DVR at its cable headend where users could record cable programming and transmit it to themselves instead of having to have a DVR in their own living room, the Second Circuit had found that the consumer-directed nature of the transmissions made the performances private ones not subject to the required consent of the broadcasters.

But, as in the DC decision, the Utah Court looked at the language and history of the Copyright Act’s definition of a public performance.  The Copyright Act provides that not only is the transmission of a signal to many people at the same time a public performance, but so is any retransmission of that signal, whether done by any process or device, to “members of the public capable of receiving the performance or display … in the same place or in separate places and at the same time or at different times.”  The Utah court analyzed the plain language of the statute and determined that the Aereo system fit squarely within that definition.  As did the DC Court, the Utah court also looked at the statutory history of this language.  The language was adopted in the 1970s to remedy Supreme Court decisions finding early cable systems to not entail public performances, and was intended to be a broad fix to prevent any future technology from retransmitting TV signals without permission – exactly what Aereo is trying to do. 

What is perhaps most interesting in this decision, and which may have the broadest potential impact when this case is decided by the Supreme Court, is the Utah court’s discussion of the Cablevision precedent.  In the Utah case, the Court indicates some discomfort with the Cablevision holding that there was no public performance when consumers watched programming that they had recorded on Cablevision’s remote DVRs and then transmitted it to their home TVs.  However, the Court went on to distinguish the two cases, pointing to the common-sense distinction that had not been discussed broadly in previous cases that, in Cablevision, the consumers (and Cablevision) had already paid for rights to the programming that was recorded on the remote DVRs.  In effect, video programmers were already getting compensation for the public performance of their work – the only question was when that work would be viewed by the consumers, whether it was live or after it was recorded and played back.  The location of the DVR thus made little difference, as the consumer already had the rights to the programming. In contrast, Aereo never has secured the public performance right, and is nevertheless profiting from the programming by retransmitting it to their subscribers.  Ultimately, the Supreme Court will decide this decision. 

As we have written, the Aereo case before the Supreme Court is not a fair use decision like the Sony Betamax home recording case from decades ago.  Instead, it is a public performance case, and the language of the decision may have significant impact on all sorts of Internet transmissions (see our discussions here and here). So you all should be carefully watching how this case plays out over the next few months.