Reposted from DLA Piper’s Sports, Media and Entertainment Blog
In April, we wrote about the ongoing dispute between Aereo, the upstart technology company that utilizes warehouses full of tiny antennas to capture over-the-air television and then retransmit it over the Internet to its subscribers’ digital devices. Broadcasters, who view Aereo as a threat to the millions of dollars in performance royalties that cable systems pay for retransmission of over-the-air programming, sued for a preliminary injunction, but lost in the United States District Court for the Southern District of New York, and then lost again in the United States Court of Appeals for the Second Circuit, which affirmed the denial of a preliminary injunction. WNET et al. v. Aereo, Inc., 712 F. 3d 676 (2d Cir. 2013). The efforts of WNET and other over-the-air broadcasters to obtain en banc rehearing of this ruling failed on July 16, when ten of twelve Second Circuit judges voted to deny rehearing. Circuit Judge Denny Chin (the dissenter in the panel decision favoring Aereo) joined by Circuit Judge Richard C. Wesley wrote a lengthy and acerbic dissent from the denial of en banc review, which appears intended to catch the eye of the U.S. Supreme Court. And, indeed, the losers in the Second Circuit appeal have already announced that they intend to ask the Supreme Court to review the Second Circuit decision.
Since the Second Circuit ruling, the battle between Aereo and broadcasters has continued to escalate, both in New York and elsewhere. In the Southern District litigation, Aereo has moved for summary judgment dismissing the complaint, arguing that its activities do not infringe any copyright protection of the broadcasters. The broadcasters have countered with a motion seeking partial summary judgment that Aereo is liable for direct infringement of the broadcasters’ reproduction rights under copyright law. The motions have not yet been decided. On May 6, Aereo went on the offensive and initiated a separate action in the U.S. District Court for the Southern District of New York seeking a declaratory judgment that its activities do not infringe on broadcasters’ copyrights, and an injunction preventing the broadcasters from attempting to relitigate issues resolved by the Second Circuit in other courts. Aereo, Inc. v. CBS Broadcasting Inc., et al, No 13-cv-3013(AJN) (S.D.N.Y.).
All the while Aereo continues to increase its coverage area, launching in the Boston metro area on May 30 and the Atlanta metro area on June 24, and announcing plans to launch in the Chicago metro area on September 13, 2013.
Which brings us to yet another development. ABC’s Boston affiliate, WCVB-TV, sued Aereo for copyright infringement in Massachusetts federal court, and moved for a preliminary injunction Hearst Stations, Inc. d/b/a WCVB-TV v. Aereo, Inc., No. 13-cv-11649-MBB (D. Mass.). The complaint is a close cousin of the one filed against Aereo in New York, alleging that “Aereo…has chosen to intercept WCVB’s programming and transmit and distribute it for commercial purposes without WCVB’s consent and without qualifying for a statutory copyright license.” [Complaint at ¶ 8.] Massachusetts is within the First Circuit and the Second Circuit’s rulings favorable to Aereo have no precedential authority there. Thus, the ABC affiliate is fully relitigating the public performance right infringement issues that the broadcasters lost in the Second Circuit.
The filing of this new action reveals that broadcasters are not willing to back down from the fight as a result of the Second Circuit’s decision. It further confirms that the legal struggle between broadcasters and Aereo is sure to be one that is long and arduous, spanning several jurisdictions, and is likely to go as far as the United States Supreme Court.