Another copyright infringement suit has followed the Barry Diller-backed internet TV start-up Aereo after its April victory in the Second Circuit Court of Appeals and subsequent expansion.  On July 9, Hearst-owned TV station WCVB-TV filed suit against Aereo in federal district court in Boston requesting, among other relief, preliminary and permanent injunctions to shut down the service.  Aereo, which has announced plans to expand to 21 additional markets, receives over-the-air programming via thousands of small antennas, records it on servers, and transmits it to individual consumers’ internet-enabled devices upon request. 

 The Hearst suit echos earlier claims brought by the major TV networks and other broadcasters in New York that the Aereo service violates the station’s sole right to reproduce and publicly perform its copyrighted content.  The lawsuit also claims that Aereo unlawfully creates a derivative work when it technologically alters each of WCVB’s copyrighted works from their original digital broadcast format into a different digital format to facilitate Aereo’s retransmission over the internet. 

 Aereo successfully combatted some of these allegations in the Second Circuit in WNET v. Aereo.  There, the Court of Appeals relied on its prior holding in Cartoon Network LP, LLLP v. CSC Holdings, Inc. and agreed with Aereo that Aereo’s transmissions to individual consumers from recordings made for that consumer do not constitute public performances.  However, in a similar case brought by Fox against the Aereokiller service (which is technologically similar to Aereo), a California district court unconstrained by the Cartoon Network decision found that the transmissions did constitute public performances, and granted a preliminary injunction shutting down the service.  See Fox Television Stations, Inc. v. BarryDriller Content Systems PLC.  That case is scheduled for oral argument in the Ninth Circuit on August 27th.  However, unlike the Second Circuit case and the Aereokiller case currently on appeal, which were limited to the issue of public performance, WCVB-TV has also sought an immediate injunction based its claims of unlawful reproduction and creation of derivative works. 

 The Boston Aereo case again expands the geographic playing field again for this conflict to the First Circuit.  In May, ABC, NBC, and Fox filed a copyright suit against Aereokiller in federal court in Washington D.C. (where it resumed service outside the bounds of the Ninth Circuit injunction), setting up an eventual appeal to the D.C. Circuit Court of Appeals.  Aereo has accused broadcasters of venue shopping in a search for sympathetic courts.  Nonetheless, the possibility that at least one of the Circuits will find in the broadcasters’ favor and result in a circuit split with the Second Circuit increases the likelihood that the issues raised in the Aereo – and possibly Cartoon Network – cases ultimately will have to be decided by the Supreme Court.

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