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My last post lays out the two sides of the Aereo controversy. 

On one side, you have the television industry content copyright holders, who argue that Aereo—a service that allows customers to stream, on their computers, tablets, and smartphones, local over-the-air programming received from a remotely located antenna—infringes their copyrights.

On the other side, you have Aereo and its allies arguing that their service is like that in Cablevision—Cartoon Network LP v. CSC Holdings Inc, 536 F.3d 121, 87 USPQ2d 1641 (2d Cir. 2008)—in which the Second Circuit found that Cablevision System's remote storage of programming on a network DVR did not constitute public performances of stored content, and thus did not violate copyright law.

The Washington Postreported Jan. 8 that Aereo plans to expand its service to "Boston, Chicago, Philadelphia, Washington and 18 other markets in the U.S., as well as to New York's suburbs."

According to the Post, Aereo's CEO and founder Chet Kanojia referred to the Southern District of New York's decision, denying the broadcasters' motion for a preliminary injunction against the service, as a "'green light'" for Aereo to build up beyond New York City. But the decision has been appealed to the Second Circuit, which could decide that Aereo should have been shut down.

Wendy Davis of MediaPost explains that Aereo's "strategy hinges on thousands of dime-sized antennas that Aereo installed in New York before launching," which "capture broadcasts and then create[] individual recordings of shows for customers' personal use."

Davis adds, "Aereo says it doesn't have to pay licensing fees because people are allowed to install antennas and receive TV transmissions for free, as well as to record shows for personal use via remote DVRs."

Davis also seems to suggest that Aereo set up its system to emulate the one at issue in Cablevision.

"Aereo doesn't need thousands of antennas for any technological reason. Instead, the company installed multiple antennas in hopes of proving it doesn't violate copyright law. The company's reasoning is that its streams aren't a public performance—which would infringe copyright—because the streams are made on an antenna-to-user basis rather than an antenna-to-group basis."

One wonders if the judges' (figuratively) raised eyebrows at oral argument are any indication of how they will rule. In questioning R. David Hosp, formerly of Goodwin Procter, now of Fish & Richardson, Boston, Mass., Judge John Gleeson tried to get Hosp to admit that the multi-antenna model was constructed purposely to comply with Cablevision. "You don't have all these little antennas because it makes any sense, it's kind of like constructing your business affairs to avoid taxes. Right?"

Trying another analogy, Gleeson said that Aereo's method was "kind of a belt and suspenders approach to avoiding the public performance?" 

Hosp said, "[C]onsumers have the right to make private performances. They have the right to use an antenna, they have the right to use a DVR, and they have the right to use … an internet connection that allows them to make private performances." Furthermore, it is not a violation of the public performance right to supply the technology that permits viewers to do these things, he said. 

Hosp urged the court not to "punish" Aereo for upholding the law, as interpreted by Cablevision. "[I]t's whether or not there is a single unique copy and who can receive that copy," he said. "[T]he District Court made factual determinations that in fact all of the facts that are relevant to the Cablevision finding are present here. … And those factual findings have not been challenged."

Arguing on behalf of the networks,  Bruce P. Keller, of Debevoise & Plimpton, New York submitted that "Cablevision was a storage service[, but] Aereo  is a retransmission service by its own design. Without a license, it violates copyrights. It sells our broadcasts, our performances, to its customers."

So, tell us what you think, O, wise and learned Second Circuit judges! Should Aereo hold off on all of its expansion efforts, or go wild? 

For more specifics on the functioning and offerings of the Aereo service, see this Washingtonpost.com review.