Broadcasters ask court for Aereo injunction


AereoHaving won the Supreme Court case, broadcasters are now proposing that New York federal judge Alison Nathan issue a preliminary injunction against Aereo that would be used as a final means of enforcement. The injunction would prohibit Aereo from “streaming, transmitting, retransmitting, or otherwise publicly performing any Copyrighted Programming over the Internet…or by means of any device or process throughout the United States of America.”

The new documents argue that Judge Nathan should forget about giving Aereo another chance and just lay down an injunction against the company that would ban it from operating.

Meanwhile, Aereo is hoping for a court to determine if it’ll be allowed to make a backup legal argument for its survival.

Aereo wants to claim that it’s a cable company in the eyes of the Copyright Office. That would qualify it for a kind of content license that would still require Aereo to pay royalties for TV shows, but not the higher fees that broadcasters want to charge directly. This license, granted under what lawyers refer to as “Section 111,” is Aereo’s best hope right now, notes a Washington Post story.

Broadcasters are arguing that Section 111 is irrelevant. The Supreme Court ruling is the final say: “The…opinion does not hold that Aereo is a cable system entitled to a Section 111 license, even though the Court was clearly aware of Section 111, as Aereo points out,” the broadcasters wrote.

Broadcasters are also demanding that any injunction address not just Aereo’s retransmission of content in near real-time, but also time-delayed content, which was one of Aereo’s key offerings.

See the Washington Post story here.

Frank Montero
Noted Francisco Montero, Managing Partner, Fletcher, Heald & Hildreth, P.L.C.: “Despite the broadcaster’s Supreme Court victory against Aereo, the actual Supreme Court decision was narrow. The Supreme Court decision focused on the Second Circuit’s refusal to issue an injunction against Aereo’s continued operation pending a trial on the merits of the infringement action.  Ordinarily, a party seeking to obtain an injunction must establish three elements: First, that they would likely succeed in their case at trial. Second, that without the injunction pending trial, they would suffer irreparable harm. Third, that the balance of the equities favors grant of the injunction.  Moreover, the Supreme Court’s ruling only addressed Aereo’s real-time streams, and not its cloud-based DVR service. Aereo has stated that, despite the loss at the Supreme Court which sent the issue of the injunction back to the US District Court and the Second Circuit Appeals Court in New York, there are still issues to be addressed about the “scope” of any preliminary injunction.  If Aereo were to qualify for a Section 111 license and begin to pay a compulsory license fee, the argument is that Aereo is no longer infringing and so an injunction would not be warranted. But Aereo has also argued that “If the Court finds Section 111 inapplicable and determines that it should enter a preliminary injunction, that injunction must be limited to the conduct the Supreme Court carved out from Cablevision’s general rule: the simultaneous or near-simultaneous streaming of over-the-air television programs. The Supreme Court opinion did nothing to prohibit — and indeed reaffirms the vitality of — non-simultaneous playback from copies created by consumers.”  The broadcasters have petitioned the court for an order prohibiting Aereo from operating its DVR service in addition to its live streams stating that “[e]ven with a time delay, Aereo’s service still involves retransmitting contemporaneously-perceptible images and sounds of plaintiffs’ programs to the public without authorization”.  Aereo will try to convince the court that their continued operation is consistent with the Supreme Court’s ruling and therefore an injunction should not be imposed because Aereo is offering time-delayed content or operation as a fully licensed cable system under Section 111 and, as such, there is no irreparable harm (one of the three elements of an injunction) to the broadcasters if Aereo continues operating (and, further, that there could be irreparable harm to Aereo if they are enjoined from operating).  In the Second Circuit’s 2012 ivi, Inc. case, the court cited a number of Copyright Office determinations that Section 111 compulsory licenses are not available for internet retransmission.  Given the ivi decision, Aereo may be facing an uphill battle as far as the Section 111 argument goes.  Aereo is also advancing its Section 111/compulsory license argument in the Tenth Circuit in Colorado where, unlike in NYC, it lost on the injunction at the trial court level. In July, the broadcasters filed for summary affirmance of the injunction in the Tenth Circuit, and ten days ago Aereo opposed that, again advancing its Section 111 argument. No telling when a decision would come out of the Tenth Circuit but it is possible that a circuit court-level decision could come out of the Tenth Circuit first.  So Aereo has a possible second front already opened up for advancement of its Section 111 argument.”