It comes as little surprise that Internet start-up Aereo Inc., which allows users to watch or record television programs online, drew the ire of broadcasters. A group of plaintiffs, including Fox Television Stations Inc., CBS Studios Inc. and the Public Broadcasting Service, sued Aereo for copyright infringement in the Southern District of New York and sought a preliminary injunction against the service, which is currently only available in metropolitan New York.
The district court denied the broadcasters’ request for a preliminary injunction, saying they were unlikely to succeed on the merits, considering the 2nd Circuit’s 2008 decision in Cartoon Network v. CSC Holdings Inc., or Cablevision, as it’s known. On April 1, the 2nd Circuit upheld the district court’s ruling 2-1 in WNET v. Aereo Inc.
The key difference between Cablevision and Aereo, the broadcasters claimed, was that Cablevision already had a license to broadcast content as a cable operator, whereas Aereo has no license at all. Judge Denny Chin, in his dissent, agreed with them on this point, writing, “Cablevision’s RS-DVR system ‘exist[ed] only to produce a copy’ of a material that it already had a license to retransmit to its subscribers … but the Aereo system produces copies to enable it to transmit material to its subscribers.”
“If the broadcasters are going to reverse the tide [on this ruling], it’s going to be on that front,” says Aaron Levine, a partner at Novak Druce Connolly Bove + Quigg.