The US District Court for the District of Utah dealt Aereo its first loss in litigation over its service enabling users to access broadcast television stations via the internet.
In a memorandum decision issued in the case of Community Television v. Aereo, Judge Dale Kimball granted plaintiffs’ request for a preliminary injunction while the case is stayed pending a determination in the case of ABC v. Aereo now before the Supreme Court. That case is scheduled for oral arguments on April 22nd, with a decision potentially coming as early as June.
The injunction applies to six western states that comprise the Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.
This is not the first time that a court has ruled against Aereo’s interests in litigation. Twice, district courts have ruled against Aereo competitor, FilmOn X, in examining the same issues. The Utah loss is the first, however, in litigation directly involving Aereo.
Common to all of these legal losses were courts unconstrained by the precedent of the Second Circuit holding in Cablevision. Just one court outside of the Second Circuit, the US District Court for the District of Massachusetts, has held in favor of Aereo.
In their petition to the Supreme Court for certiorari in Aereo, broadcasters alleged that:
The Second Circuit…managed to reach, in two steps, a result it could not reasonably have reached in one. Only by looking at the case through the distorting lens of Cablevision and its conflation of performance and transmission could the Second Circuit give a green light to Aereo’s business model. Unsurprisingly, the first two courts to consider the question unconstrained by Cablevision had little trouble concluding that a service essentially identical to Aereo was engaged in unauthorized public performance and must be immediately enjoined, resulting in a nationwide injunction, except for in the Second Circuit.
In fact, as we wrote in our analysis of the Aereo case, the problem is precisely the opposite. The District Court of Utah and the courts that heard the FilmOn X cases, unconstrained by Cablevision, managed to reach conclusions that they could not have reasonably reached, had they properly considered the unavoidable implications brought to the forefront only by a case like Cablevision.
The courts that have ruled against Aereo and FilmOn X have focused myopically on Congress’s intent to be technology neutral, and then have merely presumed that the actual language they adopted must have succeeded in achieving their intent, trumping all else.
A more careful analysis, on the other hand, reveals that this sweeping interpretation unavoidably leads to the conclusion that home antenna use (and home DVR use) also runs afoul of the Copyright Act. This is also contrary to the clear Congressional intent—only in this instance, it is intractable.
By attempting to interpret the Copyright Act broadly, in order to cover a new technology, not anticipated by Congress, some 40 years later, these courts end up vitiating Congress’s clear intent respecting the status of a technology of the day that Congress explicitly did consider and address.
Only the Second Circuit took the time to actually evaluate the implications of reading the transmit clause language so broadly.
It should not be particularly surprising that, despite their best efforts to be technology-neutral, the language Congress actually adopted failed to address a technology developed decades later, using a very different paradigm they did not foresee.
The only way to distinguish Aereo’s (and Cablevision’s) systems from in-home systems would be to fabricate an arbitrary distinction, without basis in the Copyright Act. This is not the proper role of the courts. If Aereo represents a problem needing to be fixed, then it is the role of Congress, not the courts, to fix it.
For more discussion and analysis of these issues, see Understanding Aereo, Part 4. Or for complete coverage of Aereo, see our Understanding Aereo page.