Small Screen, Bigger Picture

The following is a piece written by Eleanor M. Lackman of Copyright Alliance Legal Advisory Board member Cowan DeBaets Abrahams & Sheppard LLP.  For more from CDAS, be sure to visit their Entertainment & Media Law Blog.   

On December 27, 2012, the U.S. District Court for the Central District of California issued a preliminary injunction against Aereokiller (formerly known as BarryDriller.com), a service founded by Alki David, someone not unfamiliar with television transmission and the law.  Previously, in conjunction with rulings involving a similar technology at issue in WPIX v. ivi in New York, David’s prior television-over-the-Internet service known as FilmOn had been enjoined for making unauthorized public performances in violation of television networks’ copyright rights under Section 106(4) of the Copyright Act.  This time around, David’s Aereokiller service was set up to create unique copies of broadcast television streams, one per user, so that the transmission of those streams would be a private – not public – performance to that particular user. 

Important to the facts of the case is the outcome in ABC v. AEREO, involving a service on which David claimed Aereokiller was modeled.  In mid-2012, Aereo had prevailed in the Southern District of New York against a motion for a preliminary injunction against its broadcast-to-Internet service, on the ground that a 2008 Second Circuit decision known as Cartoon Network v. Cablevision insulated a retransmitter of copyrighted content from liability if the transmissions were made from individualized copies requested by the user.  In Cablevision’s case, the transmissions came from hard drives stored at Cablevision’s facility that were set up in such a way as to allow the service to appear to the consumer to function just like an in-home DVR.  With the “RS-DVR” system in Cablevision, subscribers would choose a show, hit “record,” and play the show back from the copy saved in Cablevision’s facilities.  In Aereo’s case, the technology captured television broadcast signals on a series of dime-sized antennas, with one antenna assigned to each subscriber, located on a rooftop in Brooklyn.  From there, the broadcasts would be streamed to subscribers on an individualized basis.  The Aereo court found the architecture legally indistinguishable from that in Cablevision.  At the end of November, the parties argued the copyright owners’ expedited appeal of the district court’s Aereo ruling.  A decision remains pending.

Just like the defendant in the Aereo case claimed that its system was designed in part to follow Cablevision “to a T,” the defendant in theAereokiller case claimed heavy reliance on Aereo, stating that it was “technologically analogous” to the system that the New York court found to be non-infringing.  Much of the briefing focused on whether this was actually the case; the plaintiffs argued in the alternative that the technology likely was essentially the same as the FilmOn technology.

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