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 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.

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.

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.

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.

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.

Filed Under: alison nathan, cable, copyright, networks
Companies: aereo, fox