It’s no secret that cable companies and broadcast television providers don’t like Aereo, the service that allows customers to stream and DVR all broadcast channel content for around $12 per month.
And both those cable companies and broadcast providers scored a major win yesterday in the 10th District Court, as U.S. District Judge Dale Kimball issued a preliminary injunction on the service in the district, which includes western states such as Colorado, Utah, Wyoming, New Mexico and Oklahoma. Aereo is (or, we suppose now, was) available in both Salt Lake City and Denver.
From Ars Technica:
Kimball ruled that Aereo’s retransmission of Plaintiffs’ copyrighted programs “is indistinguishable a cable company and falls squarely within the language of the Transmit Clause.” He didn’t buy Aereo’s argument that its system of renting a tiny antenna to each customer allows it to avoid the “Transmit Clause” of the 1976 Copyright Act, which determines what kind of “transmissions” of copyrighted material must pay licensing fees.
The key case law that Aereo uses to justify its strategy is the Cablevision precedent, a 2nd Circuit case that allowed for the building of remote-DVR services. In the Utah decision, Kimball flatly disagrees with the case. He isn’t bound by Cablevision, which was decided by the New York-based US Court of Appeals for the 2nd Circuit. Utah is in the 10th Circuit.
In Kimball’s reading, the 2nd Circuit saw Congress as attempting to “distinguish between public and private transmissions.” Kimball sees no such distinction, believing Congress intended the Transmit Clause to apply to a broad swath of technologies. Copyrighted works watched privately can still be “public performances” under particular circumstances (hotel video-on-demand systems, for instance).
Obviously, Aereo CEO Chet Kenojia was dismayed with Kimball’s ruling, saying that company will do everything in its power to remedy the decision.
The next stop for the service in determining whether it is indeed a legal service will be the U.S. Supreme Court, where an argument will be heard on April 22. Consumers of the product can expect a decision by June. Although cable and broadcast television companies lost fights in both D.C. and New York courts, the ruling in the 10th District gives them some momentum heading into the Supreme Court hearing.