In separate filings today, both sides in the broadcast television networks’ action to preliminarily enjoin the Aereo Internet television service (which we have blogged about on several occasions) put forth competing proposed findings of fact and law to Judge Nathan, as the parties await the Court’s ruling after a two-day preliminary injunction hearing in late-May. The parties offered starkly contrasting descriptions of the Aereo product. Which version of the parties’ characterization of the Aereo service Judge Nathan accepts will likely go a long way to determining whether the Aereo service violates the Copyright Act or not, and thus whether the company’s business can survive.
The plaintiffs — major network television studios such as ABC, NBC, CBS and Fox — described Aereo as providing unlicensed, live re-transmissions of copyrighted works in direct conflict with the Transmit Clause of the Copyright Act:
[Areo] has placed arrays of small antennas in its offices in Brooklyn, New York. The antennas receive the over-the-air (“OTA”) broadcast signals that carry Plaintiffs’ copyrighted television programming as the signals are transmitted from antennas atop the Empire State Building in Manhattan. Without any license to do so, Aereo converts the signals from their broadcast modulation format into an Internet protocol format and streams the programs over the Internet to Aereo subscribers, who can view them on Internet-connected devices, such as mobile phones, tablets, and computers, within seconds of the Plaintiffs’ OTA broadcast. The question before the Court is whether Aereo’s conduct infringes Plaintiffs’ exclusive right to publicly perform their copyrighted works under Section 106(4) of the Copyright Act, 17 U.S.C. § 106(4).
Areo, by contrast, described its service as a “technology platform” that allows subscribers to watch and record broadcast signals with their own individually controlled antenna and remote DVR. As Aereo stated in its brief,
To use the Aereo system, the Aereo member logs into the Aereo website from an Internet-enabled device and selects a broadcast program from the “Guide” section of the website. She can either press “Watch” or “Record” to record a program that is currently airing, and in doing so, she (i) activates a miniaturized antenna assigned to her and tunes it to receive the station carrying that broadcast, and (ii) makes from that received signal a unique copy of the program she requested, which is stored on a hard drive. In both the “Record” mode and the “Watch” mode, the consumer can play her unique copy of that program back to herself shortly after the recording has begun. The consumer can also use the “Record” mode to schedule a recording of a program that airs in the future. At the time of such future recording, her instruction automatically activates her assigned antenna and records a unique copy of the program to a hard drive. The consumer can then watch a recording at any time after the recording has begun, including while the broadcast is still airing…. Essentially, the Aereo system enables a consumer to locate her antenna and DVR remotely. Each Aereo antenna can be used and controlled by only one consumer at any given time, and is used to capture only the signal tuned by that consumer.
Both parties have their sights set on the DVR, and Aereo’s similarities and differences to that technology, because of the Second Circuit’s Cablevision decision, which blessed DVRs and other set-top recording devices that allow time-shifting playback of individually recorded shows as permissible under the Copyright Act. Whether Judge Nathan views Aereo as a remote DVR controlled by individual subscribers or a wholesale unlicensed retransmission of a network broadcast could therefore be determinative.