Aereo v Aereokiller: New York and California district courts disagree on what constitutes a public performance under the Copyright Act

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Technology continues to evolve at an ever-increasing pace, often leaving in its wake lawsuits that require the application of laws enacted before the technological advancements occurred. Perhaps it is not too surprising, then, that in struggling to apply ‘old laws’ to ‘new technologies’, courts sometimes reach contrary conclusions.

A recent example of this phenomenon involves two companies that provided their subscribers with access to copyrighted content over the internet using virtually identical technologies. Although neither service was licensed by the copyright owners, one service was preliminarily enjoined, but the other was not as the courts grappled with the issue of what constitutes a public performance under the Copyright Act.

In American Broadcasting Companies, Inc v Aereo, Inc, 874 F.Supp.2d 373 (S.D.N.Y. 2012), copyright owners of broadcast television programming sought to preliminarily enjoin a service that allowed defendant Aereo’s subscribers to contemporaneously view those same programs over the internet. One of the liability theories asserted by the plaintiffs was that Aereo’s retransmissions of the broadcasts constituted ‘public performances’ of the plaintiffs’ copyrighted programs. The District Court for the Southern District of New York denied the motion, however, finding that the plaintiffs had not demonstrated a likelihood of success on the merits based on the Second Circuit’s prior construction of the Copyright Act’s ‘transmit clause’ in Cartoon Network LP v CSC Holdings, Inc, 536 F.3d 121 (2d Cir. 2008) (‘Cablevision’)…

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