Understanding Aereo, Part 3 (Conflicting Views)

Posted By on Jan 28, 2014 | 0 comments

In part 1 of this series, we examined the litigation history of and legal issues addressed in the Cablevision RS-DVR case, which underpins the Aereo case.  In part 2, we examined the litigation history of and issues considered in Aereo, leading up to the Supreme Court’s acceptance of the case for review.

In part 3, we review some of the more significant alternative views that conflict with the Aereo holdings.

Judge Denny Chin
FilmOn X Cases

I’ll repeat my previous disclosure: I’m not an entirely disinterested party in this matter, inasmuch as I spent many years at Cablevision, and worked directly on Cablevision’s RS-DVR.

Judge Denny Chin

Denny Chin issued the initial ruling in the Cablevision case, while serving in the Southern District of New York, and then after being elevated to the Second Circuit, dissented in the appeal of the Aereo case.  He further dissented in the Second Circuit’s denial of a rehearing en banc.

In the initial Cablevision ruling, Chin found that:

The RS-DVR is clearly a service, and I hold that, in providing this service, it is Cablevision that does the copying.

Chin further concluded that buffer copies holding a fraction of a second of content at any one time, for a maximum of just over 1 second, were fixed, that it was Cablevision who performed the work on user playback of a recording, and that such a performance met the criteria for being public under the transmit clause, because:

Cablevision would transmit the same program to members of the public, who may receive the performance at different times, depending on whether they view the program in real time or at a later time as an RS-DVR playback.

In his dissent in the appeal of Aereo, Chin wrote:

Aereo’s “technology platform” is, however, a sham.  The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.

With the three-judge panel in Aereo bound to adhere to the Cablevision precedent, Chin found means to distinguish Aereo from Cablevision:

…there are critical differences between Cablevision and this case. Most significantly, Cablevision involved a cable company that paid statutory licensing and retransmission consent fees for the content it retransmitted, while Aereo pays no such fees. Moreover, the subscribers in Cablevision already had the ability to view television programs in real-time through their authorized cable subscriptions, and the remote digital video recording service at issue there was a supplemental service that allowed subscribers to store that authorized content for later viewing. In contrast, no part of Aereo’s system is authorized. Instead, its storage and time-shifting functions are an integral part of an unlicensed retransmission service that captures broadcast television programs and streams them over the Internet.

Aereo is doing precisely what cable companies, satellite television companies, and authorized Internet streaming companies do — they capture over-the-air broadcasts and retransmit them to customers — except that those entities are doing it legally, pursuant to statutory or negotiated licenses, for a fee. By accepting Aereo’s argument that it may do so without authorization and without paying a fee, the majority elevates form over substance.  Its decision, in my view, conflicts with the text of the Copyright Act, its legislative history, and our case law.

In his subsequent dissent to the Second Circuit denial of an en banc rehearing of Aereo, Chin acknowledged his continued belief that:

…in my view, Cablevision was wrongly decided.

Chin argued that the Cablevision court had erred

First, Cablevision held that “the transmit clause directs us to identify the potential audience of a given transmission” and if the “transmission is made to a single subscriber using a single unique copy produced by that subscriber,” then the transmission is a private performance because no one else can receive it. [citation]  In reaching this conclusion, this Court erroneously conflated the phrase “performance or display” with the term “transmission,” shifting the focus of the inquiry from whether the transmitter’s audience receives the same content to whether it receives the same transmission.

In essence, Chin is arguing that the transmit clause is focused not on a particular copy or transmission, but on the underlying work.


Quite frankly, Chin has been flat wrong at every turn in these cases.  Not only has Chin consistently misapplied precedent, his arguments are pretty transparently influenced by having first concluded, in both cases, that “this can’t be right” and then constructing arguments to support that conclusion.

While Chin criticizes his fellow judges for elevating “form over substance,” it is, in fact, Chin who repeatedly ignores the substance of what the statute actually says, in favor of interpreting it based on his reading of the legislative history and Congressional intent.

While examining legislative history and attempting to determine Congressional intent is an accepted and appropriate method for interpreting law where the law is ambiguous, it is most assuredly not a basis for ignoring the actual text of the statute.

At the end of the day, the words actually chosen matter.  And even if we believe that Congress chose words that failed to achieve their intent, courts are not empowered to reinterpret those words in order to correct that perceived error.

FilmOn X Cases

In a case litigated after Cablevision and the district court ruling in Aereo, but before the Second Circuit ruling in Aereo, Judge George Wu of the Central District of California (Ninth Circuit) heard NBCUniversal v. Barry Driller.  (This case involved an Aereo competitor, now known as FilmOn X, previously known as Aereokiller and Barry Driller.)

Wu took notice of the Second Circuit holding in Cablevision, but like Chin felt that the Cablevision court had erred in focusing on the performance being transmitted, rather than the underlying work.

(The Ninth Circuit heard oral arguments on FilmOn X’s appeal of Wu’s grant of a preliminary injunction in August 2013.  Given the subsequent granting of certiorari in the Aereo case, it seems unlikely that we’ll see a decision on that appeal, until after the Supreme Court has ruled.)

Another case against FilmOn X, Fox v. FilmOn X, was brought in the DC District Court after the Second Circuit ruling in Aereo, and heard by Judge Rosemary Collyer.

Collyer concluded that FilmOn X’s system, regardless of its complexities and details, constituted a device or process used to transmit a performance to the public, as contemplated by the transmit clause.  (The appeal in this case is currently held in abeyance, pending the Supreme Court ruling in Aereo.)

We’ll comment on this in the final part of this series.


After the programmers appealed to the Supreme Court for certiorari in the Aereo case, Cablevision rebuked the programmers for challenging not just the holding in Aereo, but also the holding in Cablevision, and released a white paper explaining their view that Aereo was wrongly decided, but could and should be distinguished from Cablevision, which it maintained was correctly decided.

The essence of Cablevision’s argument regarding Aereo was that the transmit clause was specifically enacted to require cable systems to pay royalties, that ‘Aereo offers a service functionally identical to a cable system,’ and as a result of being unlicensed, Aereo lacks the right to transmit content for recording on disks, in the first place.  In fact, Cablevision argues that Aereo’s recording of programs, itself, violates copyright.

Obviously, reaching these conclusions requires that one first conclude that Aereo’s use of individualized antennas is irrelevant, and that Aereo, rather than its user, is the party responsible for any transmission and copying.  We’ll reserve further commentary for the final part of this series.

Analysis And Conclusions

In the fourth and final part of this series, we look at what to make of these various arguments, and what we might expect from the Supreme Court’s review of these matters.  Or go to our Understanding Aereo page, for access to all of our Aereo-related articles.