Copyright

by Mike Masnick


Filed Under:
alison nathan, cable, copyright, networks

Companies:
aereo, fox



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.

Reader Comments

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  • icon
    Mason Wheeler (profile), 23 Oct 2014 @ 4:01pm

    And yet again we see the DMCA failing to protect a company when copyright interests want it gone.

    So much for "safe harbors..."

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2014 @ 4:23pm

    And yet another example of just how corrupt our government is.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2014 @ 4:35pm

    "You cant exist because we don't want you to"
    - Supreme Court of old people

    reply to this | link to this | view in chronology ]

  • identicon
    psiu, 23 Oct 2014 @ 4:44pm

    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...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2014 @ 4:52pm

      Re: I guess keeping my Aereo channel

      It's sad that there's no footage in that stock of dogs cleaning their rear or pooping because I find that to be the most appropriate image for a lot of these rulings.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2014 @ 4:51pm

    Corruption Intensifies.
    Add this one to the list.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2014 @ 4:55pm

    With every unjust bend of the law at the behest of gatekeepers, respect for law itself diminishes.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2014 @ 5:30pm

    And the people say:

    TV should die with it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2014 @ 5:32pm

    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.

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 23 Oct 2014 @ 6:01pm

      Re: is it my imagination ...?

      Disagree. There have been wins and losses. The case over diamond rio showed mp3 players were legal. Cablevision case helped remote dvrs and the cloud. Eldred and Grokster losses were tough though.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Oct 2014 @ 8:20pm

        Re: Re: is it my imagination ...?

        What about the the ability for today's consumers to essentially just keep doing what the previous generation(s) was allowed to do? Let's look at some examples:

        In the old days, we could re-sell our music collections. Now we can't.

        In the old days, we could make copies of our video collections. Now we can't.

        In the old days, we could record anything that came across our TV. Now we can't.

        In the old days, we could listen to radio that was performance-royalty-free. Now we can't.

        In the old days, we could choose from dozens of different internet service providers. Now we can't.

        In the old days, we could wait for copyrights to expire and books to enter the public domain. Now we can't.

        reply to this | link to this | view in chronology ]

        • identicon
          Roller Coaster, 24 Oct 2014 @ 12:10am

          Re: Re: Re: is it my imagination ...?

          History shows us that all countries build up until they've reached their peak in terms of wealth and prosperity, after which point they decline, sometimes to the point of utter destruction.

          I'd wager that if you could time travel several hundred years into the future, you'd find a United States of America that was nothing at all like the one we see today. It may not even be called the USA anymore either, but have an entirely new name.

          Nothing last forever and it's usually rampant corruption, like we've seen with this case and elsewhere for example, that begins the downturn. Thankfully everything in nature, including us and our history on this planet, is cyclical. All things end and when they do, new things grow in their place for better or worse.

          reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 23 Oct 2014 @ 6:06pm

      Re: is it my imagination ...?

      That's because that was when Big Entertainment realized they needed to buy enough politicians and judges to avoid those losses in the future. Remember a certain someone's temper-tantrum over Obama not staying bought?

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 23 Oct 2014 @ 5:40pm

    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.

    reply to this | link to this | view in chronology ]

    • icon
      velox (profile), 23 Oct 2014 @ 7:39pm

      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.

      reply to this | link to this | view in chronology ]

  • icon
    Sheogorath (profile), 23 Oct 2014 @ 8:01pm

    Question

    Given all these rulings against Aereo and the "looks like a duck" test, is a retailer guilty of copyright infringement if they sell antennas with extension cables? After all, the only thing Aereo did was provide antennas with long (online) cables to their customers, and that is now apparently illegal.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2014 @ 9:56pm

    The Courtporation has spoken, and so it must be done.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 24 Oct 2014 @ 1:51am

    Close down Aereo and open a new company to do exactly what the Supreme Court said. End of the story. Still, this is barely justice. Damned if you follow the law, damned if you try to adequate to it after a judge says you are breaking it, damned if you don't follow the law. Honestly, why would anybody do business in the US after this?

    reply to this | link to this | view in chronology ]

  • identicon
    Wyatt De Phucc, 24 Oct 2014 @ 2:50am

    live by the sword...

    this is the judge that was so sympathetic to aereo in the beginning. no surprise at all that now she is unsympathetic - the aereo arguments she embraced back then are now the very ones aereo is saying to her, "never mind"

    reply to this | link to this | view in chronology ]

  • icon
    MadAsASnake (profile), 24 Oct 2014 @ 3:26am

    Now, if Aereo was a foreign company, they could sue the US for billions under ISDS.

    reply to this | link to this | view in chronology ]

    • identicon
      Pragmatic, 27 Oct 2014 @ 8:42am

      Re:

      Now, if Aereo was a foreign company, a US corporation would sue its govt. for billions under the ISDS provisions in NAFTA.

      FIFY

      reply to this | link to this | view in chronology ]

  • identicon
    makoto saito, 24 Oct 2014 @ 3:38am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Oct 2014 @ 5:35am

    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!!'

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Oct 2014 @ 7:17am

      Re:

      So, what's next? They move to Canada, make a deal with Rogers and then flood the US airwaves from their prime location in Hollywood North. The technology survives, the US courts and legacy media people can foam at the mouth all they want.

      reply to this | link to this | view in chronology ]

  • identicon
    David, 24 Oct 2014 @ 7:19am

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Pragmatic, 27 Oct 2014 @ 8:45am

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

      Where are the free market enthusiasts when you need them? Will nobody step forward to announce that that market is due to correct itself any minute now? Nobody?

      There sure is a lot of crickets around here.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Oct 2014 @ 10:32am

    At least I can still live stream TV news at RT.com. I'll just have to continue getting my news from there until American news networks catchup.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Oct 2014 @ 12:06pm

      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.

      reply to this | link to this | view in chronology ]


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