As we previously reported, the preliminary injunction hearing between Internet TV start-up Aereo and the major network broadcasters went forward last week before Judge Nathan. Yesterday, the broadcasters got presumably their last bite at the apple, with a reply brief in further support of their original motion for the injunction. In the brief, the broadcasters take on Aereo’s argument that Internet streaming of live TV (on a seven-second delay) is akin to the “time-shifting” function of a DVR or VHS, and thus protected under the Supreme Court’s historic Sony decision and the Second Circuit’s holding in Cartoon Network v. CSC Holdings (“Cablevision“). In contrast to the recording devices at issue in those cases, the broadcasters argue, Aereo’s service does not permit individual users to copy specific programs for later consumption. Instead, Aereo itself captures the over-the-air (“OTA”) signals of broadcast television and then retransmits them to subscribers over the Internet. In addition, Aereo’s service allows consumers to view copyrighted content in a completely different medium — on computers or handheld devices over the Internet, rather than on televisions — which the broadcasters claim puts the Aereo service outside of the scope of Sony and Cablevision.
Finally, the broadcasters distinguish Aereo’s near-live retransmission of OTA broadcasts from the recording and playback of live television. The distinction goes to who made the copy and for what purpose. According to the broadcasters, the Second Circuit in Cablevision
viewed [time-shifted] recordings, each an entire program, as a “unique,” fixed copy, volitionally made by the subscriber, and the playback of that program — at a later time chosen by the subscriber — distinct from the original broadcast precisely because it was time shifted. The copy was deemed the source of the transmission, in both a temporal and physical sense…. It brok the continuous chain of transmissions that otherwise would have culminated in retransmission to the public. The “Watch Now” copy made by Aereo is different. It is neither a copy of an entire program, made and controlled by the user, nor a separate source for a transmission distinct from the original OTA broadcast. It is temporary and made by Aereo to facilitate the transmission to users as a seamless next step in sending the original OTA broadcast on. Aereo adverstises itself as a way to watch television programs “live,” as they are broadcast. That Aereo’s real-time service emanates from a temporary server copy on a few seconds delay is insufficient to convert its contemporaneous retransmissions to the public into the individualized, time-shifted, private performances at issue in Cablevision.