Preliminary Injunctions

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

This evening, the government moved to reconsider Judge Forrest’s order preliminarily enjoining the government from enforcing a federal law authorizing the government to detain persons, including U.S. citizens, who “substantial[ly] support” Al-Qaeda, the Taliban or their “associated forces.” As summarized in a prior post, Judge Forrest’s ruling was heavily influenced by the fact that the government would not agree at the injunction hearing that the conduct of the plaintiffs, a group of journalists and civic activists, would fall outside the law. The government’s motion’s first explains that, as a general matter, the conduct the plaintiffs described in their affidavits would not subject them to detention:

To eliminate any doubt, the government wants to be as clear as possible . . . . As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy.

But the government states that it should not be required to give more specific assurances than that:
Continue Reading Government Moves Judge Forrest to Reconsider Injunction Against Detention Authority