As previously discussed by Arent Fox, 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. The court recently dismissed the networks’ motion for preliminary injunction on the ground that Aereo’s services did not violate the public performance right granted under the Copyright Act. On September 14, 2012, the networks appealed the District Court’s decision to the Second Circuit.

At issue in the appeal is whether the District Court’s reliance on Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”) constituted an abuse of discretion. Focusing on the language and legislative history of the Copyright Act, the networks argue that that Aereo’s retransmission of a copyrighted work over the Internet expressly violates the Act’s “Transmit Clause.” Furthermore, the networks assert that the District Court’s application of Cablevision, which pertained to broadcast retransmissions through a DVR system, was clear error because the facts were simply not analogous. While Cablevision involved the retransmission of broadcasts for private viewing through a DVR system, Aereo’s service constitutes “a quintessential public performance” because Aereo’s antennas capture live broadcasts and retransmit them in real time and simultaneously to countless subscribers on any Internet-connected device. Therefore, and in light of the District Court’s finding of immediate and irreparable harm, the networks argue that the decision should be reversed.

The continued battle over Internet transmissions highlights the complexity of applying the existing legal framework to new technology. While the Copyright Act may permit some retransmissions, technological advances may not clearly fit within the scope of legislation, thereby avoiding liability and resulting in negative consequences for the industry.