A service that purportedly allows subscribers to stream broadcast television content to their computers and mobile devices via mini antennas infringes content industry copyrights, at least within the Ninth Circuit, the U.S. District Court for the Central District of California ruled Dec. 27 (Fox Television Stations Inc. v. BarryDriller Content Systems PLC, C.D. Cal., No. 12-6921, 12/27/12).
The court noted rejected the streaming service's reliance on a recent decision holding that broadcast streaming is legal under a 2008 Second Circuit case.
Fox moved for a preliminary injunction.
Judge George H. Wu discounted Aereo's reliance on Cartoon Network LP v. CSC Holdings Inc., 536 F. 3d 121, 87 USPQ2d 1641 (2d. Cir. 2008) (151 PTD, 8/6/08). Cablevision is at odds with Ninth Circuit precedent, the court said.
In the Cablevision case, the court held that unless a transmission itself is public, the transmitter does not infringe the public performance right. Transmissions of individual copies of a work to remote DVR players thus did not infringe the performance right, Cablevision reasoned.
Aereo held that because the streaming broadcast service assigned a unique antenna to each subscriber, the transmissions were private performances and so did not infringe the plaintiffs' copyrights.
In the Ninth Circuit, transmissions do not have to be “public” to infringe the public performance right, the court concluded. This service's transmissions of copyrighted content to subscribers, even though accomplished through direct transmissions to their individual devices, appeared to infringe the public performance right.
This court in this case disagreed with the Second Circuit's reading of the transmit clause. “The statute provides that the right to transmit is exclusive 'whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.' ”
Cablevision is at odds with On Command Video Corp. v. Columbia Pictures Industries, 777 F. Supp. 787, 21 USPQ2d 1545 (N.D. Cal. 1991), the court said. On Command Video Corp. held that transmissions from a hotel system to private rooms were infringing public performances. Cablevision expressly disagreed with that opinion, and went on to distinguish the service at issue by focusing on the service's use of separate copies of each work to make the transmission.
That distinction is only relevant if one focuses on whether a transmission is publicly performed, the court said here. “Precedent in the Ninth Circuit instead properly looks at public performance of the copyrighted work.”
Aereo applied Cablevision to find that transmissions received from individual antennas did not infringe the copyright owners' public performance rights. But Aereokiller's unique copy argument, based on Aereo and Cablevision, was not binding in the Ninth Circuit, according to the court.
Thus, Fox showed a likelihood of success on the merits. Its showing of irreparable harm rounded out their request for a preliminary injunction.
Fox was represented by David R. Singer of Jenner and Block, Los Angeles. Aereokiller was represented by Ryan G. Baker of Baker Marquart, Los Angeles.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)