The battle over services that record and stream over-the-air TV without compensation to TV broadcasters has become even more confusing, with a US District Court judge in Boston denying an injunction to stop the Aereo service in Massachusetts in a suit brought by Hearst Corporation, which owns a local TV station. This decision comes on the heels of a decision the decision by the US District Court in Washington DC finding that Aereo-like service FilmOn X was violating the copyrights of TV stations by operating a similar service in the DC area (see our discussion of that decision here). Joining decisions in NY favoring the streaming services (a decision we initially wrote about here), and one is California favoring broadcasters, the decision appears to be headed to an ultimate resolution before the Supreme Court to reflect these conflicting points of view. In fact, TV broadcasters have already announced the likelihood of their filing a Supreme Court petition asking the Court to resolve the matter.
Of course, the decisions outside of NY have been by District Courts, not US Appeals Courts. All except the NY decision are subject to review by the US Court of Appeals in the Circuits in which these District Courts lie. It is possible that the appeals could come out differently than the decisions by the District Courts, and either increase or decrease the likelihood of Supreme Court review, depending on whether the other appellate courts rule for Aereo or FilmOn X (decreasing the likelihood of Supreme Court review if the Circuits agree on the outcome) or against it (increasing the likelihood of review as the Court would be faced with conflicts among the circuits which is a usual ground for Supreme Court review). The Boston decision, while not as comprehensive as some of the other decisions on the topic, does raise some interesting issues that will no doubt be considered on appeal.
The Boston decision was not a total victory for Aereo, however, nor was the decision a detailed refutation of the well-reasoned contrary decision in the Washington DC court. Instead, the Court basically reviewed the conflicting decision, cited a few paragraphs from the statute, and determined that the plaintiffs had not met the high burden necessary for an injunction – as they had not shown that it was likely that they would prevail on the merits of the case after a trial was held and all the evidence was received and reviewed. The injunction standard is a high one and difficult to meet, as you have to prove your case before any evidence is taken, and also show that the damages that you would suffer could not be repaired by damages in the lawsuit, and outweigh any damages that the defendant would suffer if the injunction was granted. The decision also discussed other issues not raised in prior decisions on the matter.
The interesting issues that cut against Aereo and its imitators include a ruling that the suit was not precluded by the NY decision – meaning that this Court saw nothing wrong with each court across the country making its own decision as to the proper copyright result. While the New York decision was binding on District Courts in the Second Circuit, it was not deemed to be conclusive for all courts across the country.
In addition, the Court looked at the question of whether Aereo was improperly making copies of the programming of the TV broadcaster – violating another of the exclusive rights of the copyright holder (the reproduction right). Other cases had focused more on the public performance right, perhaps fearing the Second Circuit’s prior decision in the Cablevision case, holding that a remote DVR at the headend of a cable system (instead of in the living room of the customer) was not a violation of that right. But Aereo indisputably allows users to make copies of over-the-air broadcast programs, and allows those users to watch them on demand or essentially live. The Boston court actually found this to be a question of more concern than the violation of the public performance right on which prior cases have focused. The Court still wasn’t convinced that Hearst would prevail on the merits of this claim, but did want to hear more about the issue when the case goes to trial.
So watch what happens as these cases make their way through the court system. There will no doubt be many more decisions before a final resolution – either by the Supreme Court or ultimately by Congress.