denying the broadcasters’ request for a
preliminary injunction against the TV streaming service, the
Second Circuit Court of Appeals in New York relied heavily on
Cablevision ruling. There, it found that
Cablevision’s online DVR service, which recorded
television programmes and streamed them to subscribers per the
users’ requests, did not constitute a public
performance because an individual copy was made for each user.
In Aereo, the Court
found that the system, which recorded over-the-air (OTA)
broadcasts, functioned in the same way using thousands of
individual antennae to record each user’s request.
In fact, it is undisputed that Aereo specifically engineered
its system with Cablevision in mind.
array - try saying that 10 times quickly
Judge Denny Chin slammed Aereo’s system in
dissent, saying that it has "no technologically sound reason to
use a multitude of tiny individual antennas rather than one
central antenna" and is a "Rube Goldberg-like contrivance,
over-engineered in an attempt to avoid the reach of the
Copyright Act". He noted that if 50,000 viewers chose to record
the Super Bowl using Aereo, it would be considered 50,000
private uses involving 50,000 copies, though he considers such
a performance "very public".
Chin, coincidentally, was the judge who granted the
preliminary injunction vacated on appeal in
Chin’s observations again illustrate how the
law rarely if ever can keep up with technology. For the users,
there is no difference whether Aereo used one antenna or one
million. For rights holders, the fact that Aereo had some
additional costs in buying extra antennae and data storage
space is no consolation. Aereo also presumably would have liked
have built a simpler and less expensive system to achieve the
Although IP law is generally supposed to promote innovation,
it is strange to think that Aereo’s business plan
largely involves creatively engineering its way around the law
rather than solving an actual technical problem. Other than
Aereo, the clear winners in this are manufacturers of server
hard drives and tiny antenna arrays.
Given the technical and somewhat arbitrary line delineated
here, an interesting question is whether Aereo’s
system would be legal in other jurisdictions.
In NRL v Optus, the
Full Federal Court in Australia ruled last year that a
service similar to Aereo’s
constituted infringing rebroadcasts of OTA signals. Though
Optus’s TV Now service did not use thousands of
antennae, it did make recordings specific to each user.
Similarly, the Ental TV case in South Korea found a
service that allowed users to reserve and record free TV
channels and watch or download for ten days after broadcast
infringed both reproduction and transmission rights.
The Japanese Supreme Court in 2011 also
held that an Aereo-like service was infringing. The
Maneki TV case involved a service which used
Sony’s commercially available Location Free device
that allows users to stream OTA broadcasts. Maneki
TV’s service required users living abroad to
supply her own Location Free, but otherwise sounds similar to
Aereo if the user was required to supply her own antenna.
An interesting mental exercise is whether Aereo’s
service, with its specific methods for capturing, storing and
streaming shows, is legal in other jurisdictions. That said,
ultimately, these services all perform largely the same
function, and the Aereo ruling confirms that the form
of the service behind the scenes is much more important than
the function. Of course, the law often turns on minutiae and
requires precision, but ideally on details and subtleties that
matter to the parties involved beyond the legal result. In
Aereo, that doesn’t seem to be the case.