Over The Aereo

Barry Diller’s Aereo May Prevail Against Broadcasters on a Legal Technicality

The judge seems similarities between Aereo and the Supreme Court's Cablevision case.
 Barry Dillers Aereo May Prevail Against Broadcasters on a Legal Technicality

Mr. Diller

Yesterday, U.S. District Judge Alison Nathan denied broadcasters’ request for a preliminary injunction on Aereo, a service backed by Barry Diller that lets users live-stream basic channels like NBC, CBS, ABC, and PBS, all of which are suing the startup.

The plaintiffs had requested an injunction to prohibit consumers from watching programming on Aereo until the broadcast had completed airing–knocking the wind out of the whole watch-it-live proposition. But the judge’s decision yesterday also offers a hint as to how other claims in the lawsuit may be decided. 

As we discussed in our feature on Aereo, CEO and founder Chet Kanojia designed the service, which relies on individual antennae per consumer, to hew to the letter of the law. Precedent in this case refers back to what’s known as the “Betamax” case, which made VCRs legal, as well as the “Cablevision” case. The latter refers to a Supreme Court ruling that Cablevision was allowed to move its DVR systems to remote servers, rather than have consumers store programs they recorded to their individual cable box.

As Mr. Kanojia told Betabeat in May, “A simple logical extension to me was: this content is broadcast for the consumer, ends up in the public airwaves, is part of the broadcast legacy. So if network DVR is legal why can’t we build a remote network antenna?”

Broadcasters have called the idea that individual antennaes, also stored remotely in Aereo’s warehouse, a “gimmick” and cynical ploy, arguing that this constitutes a “public performance,” which requires copyright licensing. However, yesterday, the Court stated that, “faithful application of Cablevision requires the conclusion that Plaintiffs are unlikely to succeed on the merits of their public performance claim.”

The Court also noted the importance of preserving, “the expectations of parties, like Aereo, who rely on binding precedent.”

In the decision, Judge Nathan said,  “[t]he overall factual similarity of Aereo’s service to Cablevision…suggests that Aereo’s service falls within the core of what Cablevision held lawful,” adding, “[i]ndeed, in light of this Court’s factual determination that each antenna functions independently, in at least one respect, the Aereo system is a stronger case than Cablevision.”

See, now this is our idea of juicy summer soap opera. Stay tuned for the appeal.

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