Today, after extensive, fast-paced briefing from both the parties and potential amici, Judge Nathan will hold a preliminary injunction hearing that will decide, at least for the short-term, the fate of internet television start-up Aereo. As we explained in an earlier post, Judge Nathan has already dismissed the plaintiffs’ state law unfair competition claim as preempted by the Copyright Act. Now, the Court will be asked to determine whether Aereo’s service violates the Copyright Act itself.

The plaintiffs, a group of television broadcasters including ABC, CBS, NBC and Fox, claim that Aereo’s retransmittal of over-the-air (“OTA”) broadcasts violates the Transmit Clause of the Copyright Act, which, the plaintiffs claim, grants copyright owners the exclusive right to perform their works publicly.  Aereo, the plaintiffs say, has tried to avoid the plain meaning of the statute by two “technological gimmicks” — (1) assigning tiny individual antennas to subscribers on a per-show basis and (2) making a “buffer” copy of each transmission and showing it on a seven-second delay.  These aspects of Aereo’s service do not change the fact that, according to plaintiffs, Aereo is effectively offering a public broadcast of copyrighted television programming without a license to anyone with an internet connection who signs up for its $12-a-month service. Aereo, with the help of amici including the Electronic Frontier Foundation, frame their service as providing OTA broadcasting — which viewers can already access with a television and antenna at no cost — on the device of the viewer’s choosing.  They liken Aereo’s offering to a DVR, which allows for viewers to “time shift” programming and watch privately at whatever time the viewer chooses.  Like a DVR, Aereo claims, a user of its service captures and tapes only the broadcast signal for a specific show and allows transmittal of that program to an individual viewer on the technological platform of his or her choice. The preliminary injunction hearing is scheduled to last two days, today and tomorrow, with each side given five hours to present their case.  Closing arguments are scheduled to begin at 2:30 on Friday, with each side given an hour-and-a-half to sum up.  For more details on the technology and the bigger picture of what’s at stake, see Brad Adgate’s article for AdAge.