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In an opinion issued today, Judge Nathan denied the motion of several major broadcast television networks to enjoin Barry Diller-backed start-up Aereo from offering its Internet television service to subscribers. This decision follows an expedited spate of briefing and a two-day hearing, which the SDNY Blog has covered in previous posts. Judge Nathan’s decision, which goes deep into the weeds of the various technologies involved in Aereo’s offerings, turns on the applicability of the Second Circuit’s Cablevision decision, which held that a traditional DVR system did not infringe a copyright owner’s public performance rights under the Copyright Act. Judge Nathan summarized each side’s version of the applicability of Cablevision to Aereo’s product:
Continue Reading Judge Nathan Denies TV Networks’ Motion for Preliminary Injunction Against Aereo

In a ruling yesterday, Judge Swain denied Dish Networks’ motion for an anti-suit injunction against the major broadcast television networks, holding that the majority of the claims at issue should be heard in the California district court where the TV networks had filed suit against Dish. The suits concern Dish Network’s new “auto hop” function, which allows viewers to record the prime time programming of CBS, Fox, ABC and NBC, then skip commercials with the push of a single button, which we have covered before on the SDNY Blog. After Dish began offering the new auto hop feature to customers, press reports suggested that the networks were planning to sue Dish for breach of copyrights and licensing agreements. Dish filed suit in the SDNY, seeking a declaratory judgment that auto hop did not infringe any of the networks’ copyrights or breach any licensing agreements. Hours after Dish’s suit, Fox, CBS and NBC filed suits in the Central District of California. Dish then moved for an anti-suit injunction in the SDNY staying prosecution of the California litigation, which Judge Swain granted on a temporary basis.
Continue Reading Judge Swain Sends Dispute Over Dish Networks’ Commercial-Skipping DVR to California

In two orders on Monday, Judge Scheindlin and Judge McMahon reinforced their position — as reported on before in this space — that individual unknown John Does could not be joined as defendants in a single suit alleging the use of a peer-to-peer file-sharing network to download and share copyrighted films. As we have previously noted, judges in the Southern District are split on whether joinder is appropriate. In Judge Scheindlin’s case, the court denied the plaintiff’s motion for reconsideration of her sua sponte order to sever and dismiss without prejudice all claims against all but the first John Doe listed in the caption. Recognizing the split opinions among her fellow Southern District judges, Judge Scheindlin held that the difference of opinion was not sufficient grounds to cause her to reconsider her original decision:
Continue Reading Judges Scheindlin and McMahon Refuse to Reconsider Joinder of John Doe Defendants

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.
Continue Reading Parties Submit Dueling Proposed Findings of Fact and Law in Aereo Preliminary Injunction Matter

In a series of opinions issued on Tuesday and Wednesday this week, judges in four cases dealt with issues arising from complaints filed against unidentified “John Doe” defendants who allegedly used peer-to-peer file sharing programs to unlawfully share adult films over the Internet. The complaint in each case was accompanied by an ex parte motion for leave to subpoena the Internet Service Provider (ISP) linked to each John Doe defendant, known only by their own Internet Protocol (IP) number. The orders revealed a split among judges in the Southern District on how to deal with a wave of similar recent litigation. Two prior opinions, one by Judge McMahon and one by Judge Nathan, each involving the same plaintiff, a company called Digital Sin, reached two different conclusions on whether the joinder of multiple defendants in file-sharing copyright cases was appropriate and whether expedited discovery should be granted.
Continue Reading Raft of Orders on John Doe Copyright Complaints Reveals Split Among Southern District Judges

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.
Continue Reading Broadcasters Attempt to Distinguish Aereo’s Internet-TV Service from DVRs in Reply Brief

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.
Continue Reading Preliminary Injunction Hearing in Aereo Case Goes Forward Today