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Second Circuit Denies Rehearing En Banc for Aereo Plaintiffs

by Joshua Auriemma on August 13, 2013

Last summer I wrote about Aereo’s journey through the federal courts. At that time, the plaintiffs were seeking to enjoin Aereo from providing their broadcast television content to subscribers via the internet at the district court level. On July 16, the Second Circuit made clear that it had no intent of overturning the Cablevision case, discussed on LG previously, by denying en banc reargument.

Consistent with our previous discussion — and incidentally the district court’s opinion and the standard of review — the Court of Appeals for the Second Circuit believed that the crux of the issue revolved around the second section of the Transmit clause in the Copyright Act.

Specifically, the Court held, there are certain factors discussed within Cablevision that must be considered in deciding whether or not a transmission is public and therefore violative of the Copyright Act.

Based on the Court’s opinion, uniqueness of the signal seems requisite in a case like this. Because Aereo owns an antenna for each and every person to whom it transmits a signal (and therefore is not producing copies of the signal but rather is simply transmitting the original copy [pardon the oxymoron]) it’s less likely that the performance was transmitted to the public for purposes of the Copyright Act.

In the en banc denial Judge Chin, joined by Judge Wesley, attached a 27-page dissenting opinion arguing why en banc should have been granted. Interestingly, Judge Chin relied made two main arguments: (1) the holding is inconsistent with WPIX, Inc. v. ivi; and (2) the holding is of substantial public importance because it economically harms broadcasters. I find these arguments interesting because ivi is really all about a Chevron analysis that ultimately determined the company wasn’t entitled to a compulsory license under the Act whereas the present case is all about the definition of public transmission. Moreover, the policy focus on the danger to businesses is interesting given the dicta in Ivi focusing on the original intent of compulsory licenses (going back to bringing information to harder-to-reach rural areas). Arguably though Judge Chin was making a broader policy argument seemingly unrelated to statutory interpretation, but interesting nonetheless that the argument focuses on the entrenched businesses rather than startups or cord/antennae cutters (the latter not really being a “thing” so much as a fact of life for most Americans, I would imagine).

Still, interested to see what happens now. I’m not aware of whether there’s a desire to seek cert.

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