Judge: The Supreme Court Has Said Aereo Must Die, So Go Die

from the bye-bye-aereo dept

This isn’t a huge surprise, given Judge Alison Nathan’s recent comments during the Aereo hearing, but Judge Nathan has now basically granted the networks what they want — a pretty broad injunction (pdf) against Aereo.

Judge Nathan doesn’t buy the “okay, the Supreme Court said we looked like a duck, so now we’ll pay like a duck” argument.

To begin with, Aereo’s argument suffers from the fallacy that simply because an entity performs copyrighted works in a way similar to cable systems it must then be deemed a cable system for all other purposes of the Copyright Act. The Supreme Court’s opinion in Aereo III avoided any such holding.

[….]

the Supreme Court in Aereo III did not imply, much less hold, that simply because an entity performs publicly in much the same way as a CA TV system, it is necessarily a cable system entitled to a § 111 compulsory license…. Stated simply, while all cable systems may perform publicly, not all entities that perform publicly are necessarily cable systems, and nothing in the Supreme Court’s opinion indicates otherwise.

The court also makes quick work of Aereo’s DMCA defense, noting that Aereo never even bothered to make a complete showing for how it could possibly be eligible for the DMCA’s safe harbors. The judge doesn’t fully grant the networks’ request, but comes pretty close.

Therefore, while Plaintiffs may have a viable argument that even Aereo’s fully time-shifted retransmission of Plaintiffs’ copyrighted works violates Plaintiffs’ public performance right, the Court will not reach the issue at this preliminary stage of the litigation. Plaintiffs will be held to their earlier decision, strategic or otherwise, to seek a preliminary injunction limited in scope to enjoining retransmission of their copyrighted works while the works are still being broadcast.

Likewise, Aereo cannot limit the scope of the preliminary injunction to anything short of the complete airing of the broadcast despite its contention at oral argument that the Supreme Court intended “near-live retransmission” to mean something less than a ten-minute delay. See, e.g., 10/15/14 Tr. 27 :22-24 (“So that nothing is transmitted within ten minutes of the beginning of the program, for example. That would be one way theoretically to handle it.”). The preliminary injunction that was before the Supreme Court contemplated enjoining retransmission of Plaintiffs’ copyrighted works while the works are still being broadcast and that is the injunction that will issue now. The questions involving the scope of the permanent injunction that Plaintiffs seek in this litigation can be addressed quickly, and finally, by this Court in short order following the close of discovery. As a matter of sound case management, the Court declines to address the broader scope question now, before the factual record is closed, and without the benefit of fuller briefing on the matter.

In short, it’s what was said at the hearing last week: the Supreme Court made it pretty clear that Aereo should die, so the judge is going to help make that happen.

Filed Under: , , ,
Companies: aereo, fox

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Comments on “Judge: The Supreme Court Has Said Aereo Must Die, So Go Die”

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34 Comments
psiu says:

I guess keeping my Aereo channel

On the Roku was just false hope. *sigh*

Did anyone else see The Verge used the Dog SC footage and paired it with the Aereo case? I think the dogs probably have as good a grasp on this as the judges.

I guess the networks were successful though. I’m not watching TV on Aereo this fall. Of course, I’m not watching *any* TV, so…

Anonymous Coward says:

is it my imagination ...?

It seems that in most of the major “old technology” court battles over intellectual property issues that took place decades ago, such as those dealing with cable TV or VCRs, the side of technology usually prevailed.

But in more recent times, the technology side has almost always lost to the Big Entertainment side. The turning point being the mid-1980s: Sony won it’s ‘betamax’ case and the VCR got the legal stamp of approval, then Sony came out with DAT, which was immediately clobbered by so many lawyers and lobbyists that it never stood a chance of being born. And since DAT’s beat-down, it’s all been downhill. Sony decided “if you can’t beat’em, join ’em” and bought a major Hollywood movie studio and record label, and since switching sides, Sony has become one of the fiercest pro-copyright activists in the world.

If recent history is any guide, it looks like Hollywood will continue to win the battles in its never-ending war against technology for the foreseeable future.

That One Guy (profile) says:

And another branch of technology killed before it could grow

To begin with, Aereo’s argument suffers from the fallacy that simply because an entity performs copyrighted works in a way similar to cable systems it must then be deemed a cable system for all other purposes of the Copyright Act. The Supreme Court’s opinion in Aereo III avoided any such holding.

True, but understating it. The SC seemed to avoid declaring Aereo anything at all, while at the same time basing their judgement on what it acted like.

“You act like X, therefor we declare that you need to follow the same rules as X, but we won’t actually rule that you are X, and thus able to follow those rules. And since you are like X, but not following the rules that apply to X, your actions are therefor illegal.”

The SC’s ruling basically made it impossible for Aereo to exist, and now the lower court judge is just following their instructions.

velox (profile) says:

Re: And another branch of technology killed before it could grow

“The SC’s ruling basically made it impossible for Aereo to exist, and now the lower court judge is just following their instructions.”

…however, one gets the impression that this outcome may not actually be what the Supreme Court expected. If Aereo believes that to be the case, and if Barry Diller is stubborn enough to keep paying lawyers, then this battle might yet go on for a while.

makoto saito (user link) says:

aereo case

Judge Nathan has split the Case into Two Solutions, One is Real-Time Retransmission that publicly performs i.e. Section 111 and Other could be defined as Time-Shift Retransmission that privately performs i.e. Section 107.
Consequently, Consumers will be allowed to set Two Legal Choices via Cloud License Server to “provably” retransmit the Free OTA Broadcast over the Internet.

Meanwhile, the FCC is weighing whether to extend Regulations for Satellite and Cable to Real-Time Online Service i.e. OVD like Aereo.

As Final Stage, Nathan will answer the Question of whether Companies like Aereo could offer DVR-Style Tools without a License from Broadcasters.

Nathan’s the FCC Decisions will lead to Some Interesting Hollywood Solutions going foward.

Anonymous Coward says:

i wonder how much ‘encouragement’ she had to arrive at this decision? what i find as strange is how Aereo has been told it isn’t one thing, surely must mean it’s the other, given that there are only two options? as for this verdict, the case should not have been tried like this but sent back to the Supreme Court who should then make definitive ruilings, not the load of bullshit, half answers it gave previously. on top of which, there is now almost no hope whatsoever of the USA being able to use any of the inventions in media distribution in the future, simply because those who are deciding the court rulings want to ensure that the old legacy industries never evolve. how bloody backward and stupid have things got to get to before there are serious changes that in actual fact, benefit everyone, including the ‘we wont give up our decades old control of anything, for anything!!’

David says:

Who wants to make the Un-Constitutional claim against this?

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

It has become obvious that a science and useful art (in this cast, Aereo’s innovative product) is not only not being promoted, but actively destroyed.

Anonymous Coward says:

Re: Re:

But everyone knows that only dissidents, malcontents, and subversives watch RT, the Russian version of Voice of America. The NSA has your number, for sure, so don’t bother ever applying for any job requiring a security clearance. Your mind has been permanently poisoned and your patriotism diluted, if not unplugged.

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