A Utah district court has issued an injunction halting Aereo’s operations in the Tenth Circuit until the U.S. Supreme Court tackles the copyright infringement issue later this spring in ABC v. Aereo. The court also denied Aereo’s motion to transfer the case to a New York court, where it was successful in defeating the plaintiff television networks’ claims.
The district court, which is not bound by any of the previous five decisions regarding the Aereo service and a highly similar service, FilmOn X, conducted its own analysis of the parties’ contentions of whether the Transmit Clause in the Copyright Act applies to Aereo’s activities. Community Television of Utah, LLC v. Aereo, Inc., Case No. 2:13-cv-00910 (D. Utah, Feb. 19, 2014). The court concluded that the California and D.C. district court cases, as well as Judge Denny Chin’s dissent in the Second Circuit case – all of which sided with the plaintiff’s interpretation of the Transmit Clause – were the better reasoned and more persuasive pronouncements. Following closely the reasoning set forth in these opinions, the Utah court found that Aereo’s actions are prohibited under the language of the statute, as elucidated by its legislative history. The court reasoned that, in enacting the Transmit Clause in the Copyright Act of 1976, it was Congress’s express purpose to bring a cable television system’s transmission of broadcast television programming within the scope of the public performance right – and that Aereo’s service is functionally indistinguishable from a cable service’s retransmission of content.
The court rejected Aereo’s reliance on the Second Circuit decision in Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), rejecting that the court’s focus on discerning who is “capable of receiving” the performance to determine whether a performance is transmitted to the public., id. at 134, and its interpretation of the phrase “to the public” in the Transmit Clause as distinguishing between public and private transmission. The Utah court reasoned that Congress’ intent in adopting the Transmit Clause was not to distinguish between public and private transmissions, or otherwise limit the clause’s reach to future methods of delivery, such as Aereo’s Internet delivery.
Weighing the preliminary injunction factors, the court concluded that the plaintiffs met their burden of demonstrating the need for an injunction during the pendency of the litigation, but limited the scope of the injunction to the Tenth Circuit so as not to conflict with the decisions of other courts. Although the parties agreed that staying the case was appropriate pending the Supreme Court’s decision in ABC v. Aereo, the court concluded that a stay with the preliminary injunction in place was appropriate.
The Utah ruling broadens the split of decisions in the Aereo/FilmOn X cases, which have ground to a halt in expectation of a final ruling from the Supreme Court. A few weeks ago, the D.C. Circuit Court of Appeals stayed FilmOn X’s appeal of the D.C. district court’s injunction ruling pending resolution by the high Court, which left FilmOn X unable to stream TV shows anywhere in the nation, except for in the three states covered by the appealed Second Circuit’s opinion: New York, Vermont and Connecticut. The Supreme Court has scheduled argument in ABC v. Aereo on April 22, and a decision is expected in June.
 See Fox Television Stations, Inc. v. BarryDriller Content Systems, 915 F. Supp. 2d 1138 (C.D. Cal. 2012); Fox Television Stations, Inc. v. FilmOn X LLC, 2013 WL 4763414 (D.D.C. Sept. 5, 2013); WNET v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013) (and Chin, J., dissenting); WNET v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013); Hearst Stations Inc. v. Aereo, Inc., 2013 WL 5604284 (D. Mass. Oct. 8, 2013).
 To perform a work publicly means “…(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” 17 U.S.C. §101.