Still more to come from Aereo

As always – these opinions are my own. I speak for no entities or organizations.

Many sources reported that Aereo was handed a winning decision this week its it case against many of the national broadcasters. You can read the opinion here.

Most sources reported this as victory for Aereo. While it was a win, the situation has not been fully settled yet. I’ll explain three reasons why it might be too soon to celebrate if you are Aereo.

First, what tends to get overlooked the most is that this was an appeal to a decision in a request for preliminary injunction. That means the broadcasters were asking the court to stop Aereo while the case was on going. To allow this, the party asking has to prove four things. Most important is the first factor: that they will almost assuredly win (“likelihood of success on the merits”).

The trial court did not find that they would absolutely win, because there are hairy copyright questions. The appeal court confirmed this and hence why they confirmed the trial court’s opinion and sided with Aereo. You can see this in the opinion:

The district court (Nathan, J.) denied the motion, concluding that the plaintiffs were unlikely to prevail on the merits in light of our prior decision in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”). We agree and affirm the order of the district court denying the motion for a preliminary injunction.

What this means is that if the broadcasters want to, they can still go through and have a full on trial. While it is discouraging that the court states they were “unlikely to prevail”, this is before any real trial has taken place. The reason we have trials is to fully examine issues in detail. Perhaps the court could be persuaded differently.

Second, this decision was made by an appeals board of 3 judges. And it was a split decision, where 2 voted for Aereo and 1 for the broadcasters. The broadcasters can request the entire bench of appeals judges look a the issue. This is know as an en banc review. The court would have to agree to take it, but since it was not a full decision, they might choose to do so.

Let’s stick with the idea of divided opinions. The third and final point to consider about this decision is the location.  This appeal came from the 2nd federal circuit. The country is divided into various circuits, each having jurisdiction over their own territory of states.

So, this decision holds for the 2nd circuit. Often, if a similar issue hasn’t been settled in other circuits, and they agree, they will just let that decision hold (“persuasive but not mandatory”). So, for most of the country this will probably be good law.

However, in the 9th Circuit, there was a decision on a similar case already. A service that was exactly like Aereo called (ironically) Aereokiller operated in California. A similar lawsuit was brought and a decision was made that found it infringing. So, while the 2nd found it didn’t the 9th found this type of service does infringe copyright. This has a few implications.

First, check out the map of Aereo’s operating and expanding cities:
Screen Shot 2013-04-06 at 6.43.58 PMNotice how it lines up with the federal district map above. Aereo won’t risk going into the 9th circuit, because there they could be found infringing and be forced to shut down.

Second, there is a conflict of decisions! We tend to not like that because it means things operate differently and people can’t operate smoothly across the country. So, likely, an appeal will be made to the Supreme Court to make a final decision and tell us who is right. Decisions from the Supreme Court would supercede any federal district court opinion. So, if the Supreme Court likes the 9th circuit’s rationale better than the 2nd, Aereo will still be in hot water.

As an aside: how is it that two courts came to two different decisions? It comes down to my favorite area of fuzzy law – the “Public Performance“. As a reminder the Copyright Act defines a “public performance” as:

“To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. ”

The 2nd court interprets shows recorded independently and sent to a specific device over the internet to not be a public performance because an individual is setting the recording, no one else accesses it, and it is sent to specific user. This piggyback’s on the circuit’s previous Cablevision decision.

The 9th circuit on the other hand focuses on the second clause and see the internet as accessible by the public, no matter whether the people watch the performance at the same or different place or time.

In my opinion, this issue is still contentious and could easily go either way. I’ll be eagerly anticipating a decision in this area in the future!

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