This is kind of weird. The entirety of the judgment in WNET v Aereo Inc (2d Cir, 16 July 2013) is taken up by the dissent of Chin J, the majority of the 2d Circuit having decided without reasons that the appellant broadcasters' appeal should not be reheard by a full panel of the court. Aereo captures TV broadcasts and retransmits them to its subscribers by streaming them over the internet, doing so without the permission of the holders of copyright in the broadcasts. Aereo argued that this does not infringe the holders' exclusive rights 'to perform the copyrighted work publicly', on the grounds that its transmissions are private rather than public. Each Aereo subscriber gets a tiny antenna, allowing him or her to make what Aereo describes as a unique copy of the TV show for private consumption. Based on its earlier decision in Cartoon Network LP LLP v CSC Holdings Inc, 536 F2d 121 (2008), the majority of the 2d Circuit accepted this argument (Chin J dissenting) and then refused to rehear the case.
In his dissent from the rehearing decision, Circuit Judge Chin expressed the view that the case raises questions of exceptional importance that need to be addressed by a full-court rehearing in order to secure uniformity in the 2d Circuit jurisprudence, given that other decisions of the court have found activity similar to that of Aereo to infringe. Furthermore, in his view, the 2d Circuit's Cartoon Network decision was just plain wrong (and the lower-court judge they overruled was Chin J when he was a district court judge); and even if correct, Cartoon Network was misapplied by the majority in their disposition of the WNET appeal. On the substantive IP point, Chin J concluded that Aereo clearly 'transmits' the work of others for the purposes of copyright law. To say that those transmissions are 'private' would be to elevate 'form over substance', in part because it would fail to aggregate individual transmissions and essentially bless 'a sham ... designed solely to avoid the reach of the Copyright Act' through a loophole created by a misguided decision.