Aereo’s service — a public performance?

Aereo’s service — a public performance?

Recently, in American Broadcasting Companies, Inc., et. al., v. Aereo, Inc., the¬†Southern District of New York¬†denied the plaintiff’s motion to immediately stop Aereo, Inc. (“Aereo”), from retransmitting television programming, like NBC’s Saturday Night Live, to its users. While the Court took great pains to justify its conclusion that Aereo was not publicly performing, or “transmitting,” plaintiff’s copyrighted works within the meaning of the Copyright Act, its reasoning is likely flawed.

The best place to begin is the Copyright Act’s definition of “public performance.” Section 101 of the Act gives a copyright holder a government condoned monopoly to “perform or display a work ‘publicly,'” which means to “transmit or otherwise communicate a performance or display of the work to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or different times.”

In its decision denying the plaintiff’s motion for preliminary injunction, the District Court found that Aereo’s method of distribution is similar to Cablevision’s Remote Storage DVR (“RS-DVR”) device. In Cartoon Network LP, v. CSC Holdings, Inc., 546 F.3d 1212 (2d Cir. 2008) (“Cablevision“), the Second Circuit Court of Appeals held that the RS-DVR device did not publicly perform copyrighted works. As the reader may know, the RS-DVR device allows users to save their favorite programming for viewing at another time. If I am not home when Saturday Night Live is on, I can set my RS-DVR to record the program, in whole or in part, so that I can watch the program later on. And so the RS-DVR is similar to the Betamax recording device — which is like a VCR that allows you to record programs — that was upheld as a “fair use” of copyrighted materials in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

But unlike the RS-DVR in Cablevision or the Betamax in Sony Corp., Aereo’s system not only allows the user the option of recording a program on its system for later viewing. It also permits the viewer to watch Saturday Night Live contemporaneously with its distribution from NBC. Because Aereo’s system doesn’t only permit their viewers to time shift their viewing of Saturday Night Live, but acts as a substitute for viewing the program live on NBC, its method of distribution looks, talks, and acts like a public performance.

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