In March 2012, a group of networks — including Fox Television Stations, Inc., Univision Television Group, and American Broadcasting Companies, Inc. — sued Aereo, Inc. (Aereo), a subscription service that provides access to broadcast television over the Internet to users’ computers and mobile devices, for copyright infringement in the U.S. District Court for the Southern District of New York. As previously discussed by Arent Fox, in September, the networks appealed the District Court’s dismissal of their motion for preliminary injunction on the ground that Aereo’s services did not violate the public performance right granted under the Copyright Act. Aereo recently filed is reply brief on October 19, 2012.

In their appeal brief, the networks argued that the District Court’s reliance on Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (Cablevision), which allowed for broadcast retransmissions through a DVR system, was misplaced. Stating that Aereo’s services allowed for simultaneous retransmissions to numerous subscribers, the networks argued that Aereo’s actions constituted a public performance in violation of the Copyright Act. In its appeal brief, Aereo asserts that the District Court properly applied Cablevision in holding that, because Aereo’s system transmitted unique copies of programs to individual users, such transmissions were not public performances under the Copyright Act. Further, Aereo disputes the networks’ argument that the holding in Cablevision should be limited to the facts of that case and should not apply to Internet transmissions, stating that doing so “would cast into jeopardy and doubt industries and consumers” that have relied on the precedent established by the case. Moreover, because the District Court correctly found that its system was materially identical to the system in Cablevision, Aereo argued that Cablevision should apply.

The outcome of this case could have significant effects on the ability of copyright owners to control the distribution of their works, which ultimately could limit their revenue-generating capabilities.