In another iteration of the ongoing conflict between television content owners and the Internet television company Aereo, a Utah district court enters a preliminary injunction against Aereo, pending the U.S. Supreme Court’s decision on the legality of Aereo’s service in ABC v. Aereo.
Defendant Aereo provides its paying customers with access to small remote antennas that enable customers to watch or record broadcast television programs on Internet-connected computers, laptops, tablets, or other mobile devices. Plaintiffs are a collection of broadcast television companies that own or are the exclusive licensees of the copyrights to many programs that Aereo makes available to its customers. Aereo began offering its services to subscribers in New York and has since expanded its services to various cities throughout the country, prompting plaintiffs to pursue copyright infringement actions in a variety of venues.
The parties agreed that the case should be stayed pending the Supreme Court’s ruling in a parallel lawsuit brought against Aereo in the Southern District of New York but disagreed as to whether the case should be stayed with or without a preliminary injunction in place. Considering precedent from other jurisdictions and its own interpretation of the Copyright Act, the district court concluded that plaintiffs were likely to succeed on their copyright infringement claims. The court found that Aereo was infringing plaintiffs’ exclusive right “to perform the[ir] copyrighted work[s] publicly,” because the plain language of the Copyright Act, coupled with Congress’ intent to capture all conceivable forms of public performances by any technological means, applied to Aereo’s services.
In what has become known as the “Transmit Clause,” the Copyright Act defines performing a work “publicly” as “to transmit or otherwise communicate a performance or display of the work” 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.” Relying on the Second Circuit’s decision in WNET v. Aereo, Inc., Aereo argued that the Transmit Clause does not apply to its technology, because it merely enables its customers to view the copyrighted programming through a series of private transmissions. The court disagreed. In the absence of any controlling authority from the Tenth Circuit, the court found that decisions by district courts in California and Washington, D.C., as well as Judge Denny Chin’s dissent in the WNET v. Aereo, Inc. case, are better reasoned and more persuasive with respect to the proper construction of the Transmit Clause and its application to Aereo’s operations. Specifically, the court found that the plain language of the Transmit Clause contained broad language that easily encompassed Aereo’s process of transmitting copyright-protected material to paying members of the public. The court further criticized the Second Circuit’s majority decision in WNET by explaining that the term “whether” in the Transmit Clause reflects Congress’ attempt to broaden the scope of the clause, not an effort to distinguish public and private transmissions or otherwise limit the clause’s reach.
Noting that every other court to consider the issue has concluded that infringing Internet streaming of copyrighted programming causes irreparable harm, the court found that plaintiffs had demonstrated irreparable harm. According to the court, Aereo’s infringing activities threatened to impair not only plaintiffs’ control over their copyrighted programs but also their business relationships and standing in the marketplace. The court also found that the balance of harms weighed in favor of an injunction and that the public interest favored enforcing the Copyright Act’s protection of copyright owners’ exclusive rights to publicly perform their works. The court therefore granted a preliminary injunction against Aereo but limited the scope of its injunction to the geographic territory of the Tenth Circuit.
The court also denied Aereo’s motion to transfer the case to the Southern District of New York, where other suits are pending between Aereo and various television broadcasters concerning the same technology and same legal issues, finding that Aereo’s expansion of its services in the Tenth Circuit uniquely impacted the local broadcaster plaintiffs.
In a subsequent order, the district court stayed its injunction for 14 days, pending the outcome of Aereo’s emergency appeal to the Tenth Circuit.