Aereo Could Lead to Circuit Split and Copyright Changes, Attorneys Say

Rulings and pending cases involving rebroadcasting TV over the Internet have huge implications for the TV industry and copyright law, and could be headed for the Supreme Court, said several communications attorneys at an FCBA event Wednesday night. On Monday, the 2nd U.S. Circuit Court of Appeals upheld a lower court decision denying broadcasters a preliminary injunction against Aereo, which lets customers watch New York City-area TV broadcasts online by leasing them personal DVRs and antennas (CD April 2 p8). However, in December, a similar injunction against a competing Internet TV company called Aereokiller was upheld in U.S. District Court in Los Angeles.

If the 9th Circuit upholds the Los Angeles injunction, it would lead to a circuit split, said Arnold & Porter media-copyright attorney Robert Garrett at the FCBA event. He represented TV networks and movie studios in their unsuccessful challenge of Cablevision’s remote-storage DVR service in the 2nd Circuit. Two circuits differing on a point of law is one of the factors that can lead to the Supreme Court agreeing to take a case, attorneys at the event said.

Panelists focused on the implications for copyright law of Monday’s Aereo decision and recent rulings in similar cases involving other Internet TV services such as Ivi and FilmOn. The latter company was founded by Alki David, also behind Aereokiller. In Monday’s 2-1 decision, the 2nd Circuit ruled that each customer watching Aereo’s transmission on their personal mobile devices constitutes a private performance rather than a public one, meaning Aereo doesn’t need consent or permission from the broadcasters or copyright holders to show their content. “This holding is absolutely critical for cable providers,” said Dish Network Deputy General Counsel Jeff Blum.

Garrett, who filed an amicus brief in the Aereo case on behalf of several professional sports leagues, said this represented a shift in what the courts had previously characterized as a public performance. He said courts had previously used the example of someone singing in the shower when discussing why private performances shouldn’t be violations of copyright. “How is a service that provides music to hundreds of thousands of people akin to singing in the shower,” asked Garrett. He compared such a music service to Aereo, though Aereo’s technology is specifically designed to transmit programming directly from a single antenna to a single user.

Cable lawyer Seth Davidson of Edwards Wildman said changing technology and failure of the law to keep up would eventually lead to comprehensive rule changes. “Congress will have to step in,” he said: But he “doesn’t expect to still be billing hours when it happens.”