Commentary

Judge Won't Let Aereo Stream In Real Time, But Allows Remote DVR

A federal judge barred online video distributor Aereo from streaming over-the-air TV shows in real time to subscribers' smartphones and tablets, but cleared the way for the company to resume offering its remote DVR service.

The order, issued today by U.S. District Court Judge Alison Nathan in New York, marks the latest turn in a two-year battle over the online service.

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From 2012 until this June, Aereo offered an $8-a-month service that streamed over-the-air shows to people's computers and mobile devices. The service also allowed people to “record” shows for later viewing.

Broadcasters sued Aereo shortly after it launched, alleging that the company infringed copyright by transmitting programs without a license. Aereo countered that it merely offered the equipment that allowed people to watch shows on devices other than TV sets, and time-shift the programs. The company also contended that its streams were “private” -- and therefore didn't require licenses -- based on the company's architecture. Aereo relied on antennas to capture the programs, and then streamed them on an antenna-to-user basis.

Back in 2012, Nathan sided with Aereo and refused to enjoin the company. The broadcasters appealed to the 2nd Circuit Court of Appeals, which also refused to issue an injunction.

The broadcasters then sought review by the Supreme Court, which decided 6-3 in June that Aereo's real-time streams infringed copyright. The Supreme Court didn't rule on the legality of Aereo's DVR service.

The company voluntarily suspended operations several days after that decision, but said in court papers filed this summer that it wanted to resume operations.

Last week, broadcasters and Aereo faced off again in front of Nathan. This time, the broadcasters asked Nathan to issue an injunction prohibiting Aereo from offering either real-time streams or its remote DVR service, which allows people to record shows for later viewing.

For its part, Aereo asked Nathan to declare it a cable company, in which case it would be entitled to a compulsory license. Aereo drew heavily on a portion of the Supreme Court ruling that discussed the original community antenna TV systems. Justice Stephen Breyer called Aereo “highly similar” to the original community antenna TV companies, and noted that Congress rewrote the Copyright Act in 1976 to require CATV companies to obtain licenses.

But Nathan ruled today that the Supreme Court ruling didn't transform Aereo into a cable company -- even though the court said the company resembles one. “The Supreme Court ... did not imply, much less hold, that simply because an entity performs publicly in much the same way as a CA TV system, it is necessarily a cable system,” she wrote.

At the same time, Nathan declined to block Aereo's DVR service. Instead, she issued the broadcasters the narrower order they requested in 2012, when the case first appeared in court. “Plaintiffs will be held to their earlier decision, strategic or otherwise, to seek a preliminary injunction limited in scope to enjoining retransmission of their copyrighted works while the works are still being broadcast,” she wrote.

Whether Aereo believes it makes financial sense to resume its DVR service remains to be seen. A spokesperson said only that the company was reviewing Nathan's order. Either way, Nathan's injunction is considered “preliminary,” and can be revised after there's a trial. Still, if history is any guide, Aereo and the broadcasters won't want to wait that long -- meaning that, unless there's a sudden detente, this case could be headed for a new round of appeals.

4 comments about "Judge Won't Let Aereo Stream In Real Time, But Allows Remote DVR".
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  1. Chuck Lantz from 2007ac.com, 2017ac.com network, October 23, 2014 at 9:07 p.m.

    One of these days, a decision is going to come down from one or more of the higher courts, finally allowing us to watch what we want to watch, where and when we want to watch it, a privilege I'd be more than willing to pay for. But I won't hold my breath until that happens.

  2. Douglas Ferguson from College of Charleston, October 24, 2014 at 9:29 a.m.

    Maybe someone should explain to Alison Nathan that DVRs are nonlinear, so there's no meaningful difference between live and DVR. She is apparently thinking of how a VCR works, where you must wait a long time to rewatch something that was live.

  3. Douglas Ferguson from College of Charleston, October 24, 2014 at 12:01 p.m.

    Having read the decision a little more closely, I think I was wrong. Aereo cannot operate a near-live service.

  4. makoto saito from http://www.reencryption-tv.jp/, October 25, 2014 at 12:24 a.m.

    Judge Nathan has split the Case into Two Solutions, One is Real-Time Retransmission i.e. Section 111, Other is Time-Shift Retransmission i.e. Section 107.
    Consequently, Consumers are allowed to set Two Legal Choices via Cloud License Server to "provably" retransmit the Free OTA Broadcast over the Internet.

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