Aereo TV Streaming Service Survives Boston Challenge
Aereo Inc., the Barry Diller–backed start-up that streams live TV programming to subscribers over the Internet, scored another key win this week in its do-or-die copyright battle with the forces of broadcast television.
Siding with Aereo's lawyers at Fish & Richardson, a federal judge rejected a bid to enjoin Aereo from streaming network programming in the Boston television market — one of seven markets where Aereo has already launched its fast-expanding service. U.S. District Judge Nathaniel Gorton in Boston ruled that Hearst Stations Inc., the operator of Boston's ABC affiliate WCVB-TV, wasn't in acute danger of irreparable harm from Aereo and hadn't shown a likelihood of success on its infringement claims.
Hearst filed its suit in July, accusing Aereo of copyright infringement for transmitting its broadcast signal to subscribers without compensating the copyright owners. Hearst's lawyers at Holland & Knight also asked the court for a preliminary injunction blocking Aereo's service, which launched in Boston in May.
As in prior copyright challenges from the networks, Aereo countered that it allows consumers to do what they're legally entitled to do: access free over-the-air television signals using an antenna, create recordings for personal use, and play those recordings back on personal devices.
In refusing to grant the preliminary injunction, Gorton noted that in April the U.S. Court of Appeals for the Second Circuit upheld a parallel ruling for Aereo in a New York copyright case brought by the broadcasters. The Second Circuit, in turn, had relied on its own 2008 ruling in Cartoon Network v. CSC Holdings (known as Cablevision), in which the court found that technology allowing users to record third-party programs on remote servers for later viewing doesn't infringe copyright holders' exclusive rights to perform their works publicly.
Gorton acknowledged that judges in Washington, D.C., and California had disagreed with the Second Circuit's approach in cases involving an Aereo rival. But without any guidance from the First Circuit on the issue, Gorton ruled that "Aereo's interpretation is a better reading" of the law. The judge did, however, deny Aereo's motion to transfer the case to New York.
WCVB lawyer J.D. Smeallie at Holland & Knight referred us to a station spokesman who provided the following statement: "The court was right to keep this case in Boston, the home of WCVB-TV. We will immediately appeal the court's decision that allows Aereo to continue to engage in a commercial business that unlawfully profits by using WCVB's copyrighted broadcasts and shows. We expect to prevail in this case."
Fish & Richardson's David Hosp declined to comment. (We named Hosp Litigator of the Week in July 2012 for beating back the broadcasters' parallel injunction bid in New York.) Aereo CEO and founder Chet Kanojia said in a statement that the Boston ruling "shows that when you comply not only with the letter, but the spirit of the law, justice will prevail."
In other Aereo news, lawyers at Jenner & Block on Monday filed a new copyright infringement lawsuit in Utah federal court against Aereo on behalf of Fox Broadcasting Company and a group of local affiliates. The same day, broadcasters won a ruling from a federal magistrate judge in New York allowing them to depose Kanojia and another Aereo exec about apparent contradictions between the company's patent applications and its copyright defense.
On Wednesday, meanwhile, Variety reported that the broadcasters intend to ask the U.S. Supreme Court to review their previous loss at the Second Circuit.