Judge: The Supreme Court Has Said Aereo Must Die, So Go Die
from the bye-bye-aereo dept
This isn't a huge surprise, given Judge Alison Nathan's recent comments during the Aereo hearing, but Judge Nathan has now basically granted the networks what they want -- a pretty broad injunction (pdf) against Aereo.Judge Nathan doesn't buy the "okay, the Supreme Court said we looked like a duck, so now we'll pay like a duck" argument.
To begin with, Aereo's argument 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. The Supreme Court's opinion in Aereo III avoided any such holding.The court also makes quick work of Aereo's DMCA defense, noting that Aereo never even bothered to make a complete showing for how it could possibly be eligible for the DMCA's safe harbors. The judge doesn't fully grant the networks' request, but comes pretty close.
[....]
the Supreme Court in Aereo III did not imply, much less hold, that simply because an entity performs publicly in much the same way as a CA TV system, it is necessarily a cable system entitled to a § 111 compulsory license.... Stated simply, while all cable systems may perform publicly, not all entities that perform publicly are necessarily cable systems, and nothing in the Supreme Court's opinion indicates otherwise.
Therefore, while Plaintiffs may have a viable argument that even Aereo's fully time-shifted retransmission of Plaintiffs' copyrighted works violates Plaintiffs' public performance right, the Court will not reach the issue at this preliminary stage of the litigation. Plaintiffs will be held to their earlier decision, strategic or otherwise, to seek a preliminary injunction limited in scope to enjoining retransmission of their copyrighted works while the works are still being broadcast.In short, it's what was said at the hearing last week: the Supreme Court made it pretty clear that Aereo should die, so the judge is going to help make that happen.
Likewise, Aereo cannot limit the scope of the preliminary injunction to anything short of the complete airing of the broadcast despite its contention at oral argument that the Supreme Court intended "near-live retransmission" to mean something less than a ten-minute delay. See, e.g., 10/15/14 Tr. 27 :22-24 ("So that nothing is transmitted within ten minutes of the beginning of the program, for example. That would be one way theoretically to handle it."). The preliminary injunction that was before the Supreme Court contemplated enjoining retransmission of Plaintiffs' copyrighted works while the works are still being broadcast and that is the injunction that will issue now. The questions involving the scope of the permanent injunction that Plaintiffs seek in this litigation can be addressed quickly, and finally, by this Court in short order following the close of discovery. As a matter of sound case management, the Court declines to address the broader scope question now, before the factual record is closed, and without the benefit of fuller briefing on the matter.
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Filed Under: alison nathan, cable, copyright, networks
Companies: aereo, fox
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So much for "safe harbors..."
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- Supreme Court of old people
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I guess keeping my Aereo channel
Did anyone else see The Verge used the Dog SC footage and paired it with the Aereo case? I think the dogs probably have as good a grasp on this as the judges.
I guess the networks were successful though. I'm not watching TV on Aereo this fall. Of course, I'm not watching *any* TV, so...
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Re: I guess keeping my Aereo channel
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Add this one to the list.
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And the people say:
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is it my imagination ...?
But in more recent times, the technology side has almost always lost to the Big Entertainment side. The turning point being the mid-1980s: Sony won it's 'betamax' case and the VCR got the legal stamp of approval, then Sony came out with DAT, which was immediately clobbered by so many lawyers and lobbyists that it never stood a chance of being born. And since DAT's beat-down, it's all been downhill. Sony decided "if you can't beat'em, join 'em" and bought a major Hollywood movie studio and record label, and since switching sides, Sony has become one of the fiercest pro-copyright activists in the world.
If recent history is any guide, it looks like Hollywood will continue to win the battles in its never-ending war against technology for the foreseeable future.
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Re: is it my imagination ...?
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Re: Re: is it my imagination ...?
In the old days, we could re-sell our music collections. Now we can't.
In the old days, we could make copies of our video collections. Now we can't.
In the old days, we could record anything that came across our TV. Now we can't.
In the old days, we could listen to radio that was performance-royalty-free. Now we can't.
In the old days, we could choose from dozens of different internet service providers. Now we can't.
In the old days, we could wait for copyrights to expire and books to enter the public domain. Now we can't.
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Re: Re: Re: is it my imagination ...?
I'd wager that if you could time travel several hundred years into the future, you'd find a United States of America that was nothing at all like the one we see today. It may not even be called the USA anymore either, but have an entirely new name.
Nothing last forever and it's usually rampant corruption, like we've seen with this case and elsewhere for example, that begins the downturn. Thankfully everything in nature, including us and our history on this planet, is cyclical. All things end and when they do, new things grow in their place for better or worse.
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And another branch of technology killed before it could grow
True, but understating it. The SC seemed to avoid declaring Aereo anything at all, while at the same time basing their judgement on what it acted like.
"You act like X, therefor we declare that you need to follow the same rules as X, but we won't actually rule that you are X, and thus able to follow those rules. And since you are like X, but not following the rules that apply to X, your actions are therefor illegal."
The SC's ruling basically made it impossible for Aereo to exist, and now the lower court judge is just following their instructions.
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Re: And another branch of technology killed before it could grow
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Question
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live by the sword...
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FIFY
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aereo case
Consequently, Consumers will be allowed to set Two Legal Choices via Cloud License Server to "provably" retransmit the Free OTA Broadcast over the Internet.
Meanwhile, the FCC is weighing whether to extend Regulations for Satellite and Cable to Real-Time Online Service i.e. OVD like Aereo.
As Final Stage, Nathan will answer the Question of whether Companies like Aereo could offer DVR-Style Tools without a License from Broadcasters.
Nathan's the FCC Decisions will lead to Some Interesting Hollywood Solutions going foward.
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Who wants to make the Un-Constitutional claim against this?
It has become obvious that a science and useful art (in this cast, Aereo's innovative product) is not only not being promoted, but actively destroyed.
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Re: Who wants to make the Un-Constitutional claim against this?
There sure is a lot of crickets around here.
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