On remand from June’s Supreme Court decision, U.S. District Judge Alison J. Nathan issued an injunction prohibiting Aereo from streaming copyrighted broadcast television programming over the Internet while the programming is still being broadcast. In doing so, she rejected Aereo’s claim that it is a “cable system” eligible for a statutory license to retransmit broadcast television programming under Section 111 of the Copyright Act and Debevoise & Plimpton LLP represented ABC, CBS and NBC in this litigation.
Aereo’s streaming service launched in New York City in February 2012. The broadcast networks sued and moved for a preliminary injunction shortly thereafter. The district court denied that motion in July 2012. Relying on the Court of Appeals’ decision in Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), it held that Aereo’s insertion of subscriber-associated copies in the course of transmitting the broadcast programming to its subscribers made the resulting performances “private” and therefore outside of the scope of the broadcasters’ copyrights. The Court of Appeals affirmed largely on the same grounds.
In June 2014, the Supreme Court reversed. Its holding relied on the fact that the relevant provision of the 1976 Copyright Act was intended to overturn two earlier Supreme Court opinions that held cable systems did not violate the 1909 Copyright Act when they retransmitted broadcast television programming. The Supreme Court relied on this history and found Aereo to infringe because it performed the same function – retransmitting broadcast television programming – as the cable systems Congress intended to bring within the reach of the 1976 Copyright Act.
Aereo attempted, as Judge Nathan put it, to do “its best to turn lemons into lemonade” by arguing the Supreme Court held Aereo is, in fact, a “cable system” eligible for the Section 111 statutory license. Judge Nathan rejected Aereo’s argument, writing that it “suffers from the fallacy that simply because an entity performs copyrighted works in a way similar to cable systems it must then be deemed a cable system for all other purposes of the Copyright Act.” Relying on another Second Circuit precedent holding that Internet-based transmission services are not “cable systems” within the meaning of the statutory license, and rejecting Aereo’s other post-Supreme Court defenses, Judge Nathan entered the injunction the broadcasters had sought in their 2012 motion for a preliminary injunction – an order enjoining Aereo from streaming any programming during the broadcast window.
