Salt Lake City — A federal judge approved Wednesday a preliminary injunction against mobile TV service Aereo.
Judge Dale Kimball, of The U.S. District Court for the Southern District of Utah, ruled in favor of local broadcasters Community Television of Utah, KUTV-TV, Fox Broadcasting, and Nexstar Broadcasting, although the case will not proceed further until after a similar injunction case is heard by the U.S. Supreme Court in April.
“The plain language of the 1976 Copyright Act support Plaintiffs’ position,” Kimball wrote. “… Throughout the debates on the 1976 Copyright Act, the proponents of no copyright liability argued that broadcast stations offer their programming free over-the-air to the viewing public and cable systems do nothing more than provide technology that allows consumers to do what they can do on their own. Congress resolved the issue by concluding that commercial broadcast retransmission services must obtain copyright licenses and compensate copyright holders. … Congress reached that conclusion because it determined that a commercial enterprise should not be allowed to build a business off the exploitation of copyrighted programming without compensating the owners of that programming.
“Based on the plain language of the 1976 Copyright Act and the clear intent of Congress, this court concludes that Aereo is engaging in copyright infringement of Plaintiffs’ programs. Despite its attempt to design a device or process outside the scope of the 1976 Copyright Act, Aereo’s device or process transmits Plaintiffs’ copyrighted programs to the public. Accordingly, the court concludes that Plaintiffs have met their burden of establishing a likelihood of success on the merits.”
With the ruling, Kimball stayed the case pending the outcome of the Supreme Court case involving Aereo and broadcasters.
Oral arguments on that case will be held April 22. The injunction applies to the 10th Circuit, which covers the District of Colorado, District of Kansas, District of New Mexico, Eastern District of Oklahoma, Northern District of Oklahoma, Western District of Oklahoma, District of Utah and the District of Wyoming.
Aereo retransmits broadcast TV signals to mobile devices via Cloud-based storage. The company claimed it is not subject to retransmission consent law because of its technological configuration.
Pay-TV providers such as cable and satellite services are covered under retransmission law in that they take broadcast signals and “retransmit” them to many subscribers, making the configuration a “public performance,” which is subject to retransmission consent fees levied by broadcasters.
Aereo, instead, rents tiny, individual antennas to subscribers who access the multichannel service through a Cloud-based app, all of which Aereo claimed is a “private performance,” akin to a definition laid out by Cablevision in its landmark case that established the legality of remote, networked DVRs.