Broadcasters Take Aereo Fight to First Circuit

, The Litigation Daily

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Sheri Qualters writes for The National Law Journal, an American Lawyer affiliate.

A Hearst Corp. subsidiary’s challenge to a Boston federal judge’s refusal to slap an injunction on Aereo Inc. continues a copyright war between broadcasters and the Internet television company.

Hearst filed its opening appellate brief on Monday in the U.S. Court of Appeals for the First Circuit in Hearst Stations Inc. v. Aereo Inc. Hearst is appealing Judge Nathaniel Gorton’s October 2013 denial of its preliminary injunction request.

The question before the court is whether Aereo’s use of thousands of tiny, personalized antennas to pick up broadcast television signals and retransmit them through its users' Internet-connected devices violates broadcast copyrights.

Hearst claims that Aereo is violating its Boston station WCVB-TV’s public performance rights. Aereo contends that its users are watching private performances.

“In denying WCVB’s public performance argument, the district court failed to engage in any independent analysis and appears to have relied exclusively on the reasoning of a Second Circuit case, which has been harshly criticized by copyright scholars and had not been followed by any other court outside that circuit,” Hearst argued in its brief.

In April, a divided Second Circuit panel held that Aereo’s technology allowed its subscribers to legitimately view "private performances" of broadcasts.

Hearst’s First Circuit brief pointed out that two district court rulings in similar cases that went its way.

A federal judge in Washington ruled in September in a case involving an Aereo rival with nearly the same technology. U.S. District Judge Rosemary Collyer issued an injunction against the defendant in The Fox Television Stations Inc. v. FilmOn X LLC, finding that the network plaintiffs were likely to win their copyright case.

FilmOn’s appeal is pending in the D.C. Circuit Court of Appeals.

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