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Aereo blocked from real-time TV rebroadcasts

Applying the Supreme Court’s June decision that raised a major new legal threat to Internet rebroadcast of copyrighted TV programs, a federal judge in NewYork City on Thursday ordered Aereo, Inc., to refrain from relaying video to paying customers while any part of the original show is on the air.  She refused — but will consider later — a broader plea to stop Aereo from storing such programs for later (“time-shift”) viewing by its customers.  (UPDATE: The specific terms of the judge’s order can be read here.)

U.S. District Judge Alison J. Nathan, handling the case after its return from the Supreme Court, confined her ruling to a preliminary order limiting what Aereo may offer its customers in relaying TV programming.   She rejected, at least for now, a plea by the over-the-air broadcasting industry for an order to also prohibit Aereo from copying and storing copyright video for later viewing.  That will be an issue, she said, when she decides the shape of any permanent order if she ultimately rules for the broadcasters on the core legal issue of copyright infringement.

While the limitation of her preliminary order was a modest if only temporary victory for Aereo, other parts of Judge Nathan’s ruling were significant defeats for the new Internet company.  She made her new order nationwide, rather than regional.  But, most importantly, she refused to treat Aereo as if it were a cable TV company with a right to a license to rebroadcast TV shows for a fee.

And, while the traditional broadcast industry got a significant victory in the new order, it did not get the sweeping expansion of the preliminary order that it had sought in the wake of the Supreme Court decision in its favor.

Perhaps the key reason that the industry did not get that at this point is that, as the judge noted, the broadcasters never asked for that at any earlier stage in the case, before the lower courts or when it was on appeal to the Justices.  Rather, the companies had sought an order against Aereo confined only to rebroadcast while the original was still playing — in other words, “live” or “near-live” retransmission.

It should be stressed that no court has yet ruled, in a final way, that Aereo has infringed illegally on the copyrights held by the broadcasters in their TV programming.  The only issue the Supreme Court decided was whether Aereo’s retransmission was a “performance” of a kind that Congress had outlawed in copyright law.  And, before the case went to the Supreme Court, Aereo had won in the lower courts on its claim that it was not performing the copyrighted shows. at all.

Judge Nathan’s ruling was not a final decision on infringement.  In deciding to issue the preliminary order, though, she did rule that the broadcast industry had shown that it was likely to win ultimately on that point, and that it would be seriously harmed by such retransmissions of its programs.

The judge said she would now move ahead, on what she said would be an expedited schedule, to complete the fact-gathering in the case and move toward a decision on whether to issue a permanent ban against Aereo, and a final decision on the shape of any such ban.

Aereo had been attempting, since the case returned to Judge Nathan, to make use of repeated comments in the Supreme Court’s main opinion that what Aereo was offering its customers was something like what cable TV does, under compulsory licensing to use copyrighted shows.

Judge Nathan, however, concluded that, even though the Supreme Court had compared Aereo’s service to cable TV for purposes of deciding whether it was “performing” the shows (instead of just letting its customers use its equipment to view them), the Supreme Court had not said that Aereo was a cable TV operator.   The judge went on to rule that Aereo cannot qualify for that status, legally.

The judge also rejected other legal defenses put forward by Aereo.



Recommended Citation: Lyle Denniston, Aereo blocked from real-time TV rebroadcasts, SCOTUSblog (Oct. 23, 2014, 7:27 PM),