Judge Nathan has scheduled a conference for May 17 in anticipation of a preliminary injunction hearing addressing the legality of a novel technology, developed by a company called Aereo, for watching TV broadcasts over the internet. Broadcasters sued Aereo for (among other things) violating their exclusive rights under the copyright laws to the public distribution of their works. Aereo claims that any distribution is purely private (not public) because each subscriber rents a unique remote, miniature antenna and can decide whether and when to make his or her own unique copy of the broadcast to be stored on Aereo’ s remote DVR system for playback on the subscriber’s own internet enabled device.
Aereo relies on the Supreme Court’s famous Sony decision, which held that “time-shifting” television with a VCR was not contributory infringement, and on the Second Circuit’s decision in The Cartoon Network v. CSC Holdings, Inc., which held that Cablevision’s remote DVR service was not a public distribution because each “playback transmission is made to a single subscriber using a single unique copy produced by that subscriber.” Here’s a sample from Aereo’s pre-hearing brief:
Plaintiffs in this case are really trying to prevent Aereo from supplying the machinery, or system, that consumers may use to more easily or conveniently perform acts that are entirely lawful. Sony and Cablevision establish that there can be no liability for providing such a system. And it is no answer to suggest, as Plaintiffs do, that there is something improper with Aereo’s system because many consumers may use it to exercise these basic rights. Each consumer possesses the right, individually, to copy over-the-air television programming for herself, and to play back that same unique copy to herself. Much as Plaintiffs may wish it to be otherwise, Congress did not and does not prohibit consumers from making private performances of a copyrighted work.
The plaintiffs counter:
[T]he reception of a broadcast signal by using multiple miniature antennas rather than a cable headend or any other form of receiving “device” does not affect whether Aereo is engaged in a public performance. Aereo plainly uses “any device or process,” in this case a collection of countless antennas and infrastructure used to receive, tune, encode and otherwise process the broadcast signals, to transmit a performance of a work so that it is “capable” of being received by different members of the public. It is Aereo’s retransmission of programs to multiple individuals, here done simultaneously with the original broadcast, that makes it a public performance, whether Aereo uses a single antenna or multiple antennas.