Supreme Court to Decide if Aereo's Service Results in ‘Public Performance' of TV Shows

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By Tamlin H. Bason  

Jan. 10 --The Supreme Court granted a petition of writ of certiorari challenging the Second Circuit's determination that Aereo Inc.'s service was not infringing based on the legal conclusion that Aereo's transmission of copyrighted television programs to thousands of individual Internet subscribers does not constitute a “public performance” under the Copyright Act, American Broad. Cos. v. Aereo, Inc.(U.S., No. 13-461, review granted 1/10/14).

Filed by a group of broadcasters in October (200 PTD, 10/16/13), the petition argued that the Second Circuit's interpretation of the public performance right constitutes “nonsensical reasoning [that] cannot be reconciled with the plain text of the Copyright Act or Congress' manifest intent to include retransmission services within the scope of the public-performance right.”

In December, Aereo filed a response in which it declined to oppose the broadcasters' bid for Supreme Court review (241 PTD, 12/16/13). The service, which has been plagued by lawsuits ever since it initially launched in New York in 2012, noted that there is no circuit split on the issue, but it nonetheless agreed that the high court should intervene.

“Even though the Second Circuit decided that issue correctly, petitioners have signaled their intention to wage a war of attrition by re-litigating this issue in every market to which Aereo expands its business,” the service said in its brief filed with the Supreme Court Dec. 12. “Accordingly, Aereo believes it is appropriate for this Court to grant review to affirm the decision below.”

Broadcasters Say Cablevision Is to Blame

The petition identified the question presented as:

Whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.  

 

In July, the Second Circuit denied a petition for rehearing en banc (137 PTD, 7/17/13)that challenged a panel determination that Aereo did not publicly perform the networks' content (63 PTD, 4/2/13). That holding in turn rested on the Second Circuit's 2008 decision in Cartoon Network LP v. CSC Holdings Inc., 536 F.3d 121, 87 U.S.P.Q.2d 1641 (2d Cir. 2008) (151 PTD, 8/6/08), which is commonly known as Cablevision.

In the petition, the networks urged the court to overturn Cablevision's interpretation of Section 101's transmit clause. 17 U.S.C. §101. Although there is not yet a circuit split, the petition noted that services similar to Aereo's have been found infringing by district courts that are not bound by Cablevision. Those cases are Fox Television Stations Inc. v. BarryDriller Content Sys. PLC, 915 F. Supp. 2d 1138 (C.D. Cal. 2012) (02 PTD, 1/3/13), and Fox Television Stations, Inc. v. FilmOn X LLC, 2013 BL 243147, (D.D.C. 2013) (176 PTD, 9/11/13). However, the District of Massachusetts on Oct. 8 declined to enjoin Aereo's Boston service and hinted that it agreed with Cablevision's interpretation of a public performance. Hearst Stations Inc. v. Aereo, Inc., 2013 BL 282327, 108 U.S.P.Q.2d 1712 (D. Mass. 2013) (198 PTD, 10/11/13).

Aereo Urged Court to Take This Case, Not BarryDriller

In Aereo's brief, it noted that although its service has repeatedly been found non-infringing, its competitors have not been so fortunate. However, Aereo claimed that the Second Circuit's decision was based on a much more robust record than was present in FilmOn and BarryDriller.

“That deficiency is particularly acute in the BarryDriller case now under submission after oral argument in the Ninth Circuit,” Aereo said. Thus, “If a circuit conflict were to develop out of one of those cases, the resulting decision would not reflect nearly so detailed a factual record as this case,” Aereo said.

The Supreme Court apparently saw no reason to wait to see if a circuit split develops.

Justice Samuel A. Alito did not participate in the petition review.

Aereo is represented by David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC., Washington, D.C. The networks are represented by Paul D. Clement of Bancroft PLLC, Washington, D.C.

 


Aereo's brief is available at http://pub.bna.com/ptcj/13461AereoDec1213.pdf.

The networks' petition is available at http://pub.bna.com/ptcj/ABCvAereo_11Oct13.pdf.

 

To contact the reporter on this story: Tamlin Bason in Washington at tbason@bna.com

To contact the editor responsible for this story: Naresh Sritharan at nsritharan@bna.com