Aereokiller Web TV Service Held Infringing Notwithstanding Contrary Decision on Aereo

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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.

Streamer Cites Aereo Ruling.

Fox Television Stations Inc. and other producers of copyrighted works that appear on free, over-the-air broadcast television networks sued BarryDriller Content Systems PLC, Aereokiller LLC, and others for infringing their copyrights by offering their content through internet and mobile device streaming. Aereokiller's service purportedly operates by transmitting broadcast content, captured from miniature antennas, to customers' computers and mobile devices. Aereokiller argued that its service is legal because it is technologically analogous to the Aereo service, which was recently rolled out in New York and held to be noninfringing in American Broadcasting Companies v. Aereo Inc., No. 12-1540 (S.D.N.Y. July 11, 2012) (135 PTD, 7/16/12).

Fox moved for a preliminary injunction.

Service Infringes.

The Copyright Act's transmit clause, 17 U.S.C. §106(4), grants copyright owners the exclusive right to publicly perform their works. Public performances include the transmission or communication of a performance or display of the work to the public.

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.

By Amy E. Bivins  

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