Broadcasters’ En Banc Appeal of Aereo Decision Denied
Broadcasters’ appeal to have their case for an injunction against online TV service Aereo reheard by a full panel of judges was denied Tuesday by the 2nd U.S. Circuit Court of Appeals in New York after a 10-2 vote. The failure of the appeal of denial by a three-judge 2nd Circuit panel of an injunction preventing Aereo from retransmitting TV stations’ content is not unexpected, said several broadcast attorneys and one of the appellants, Fox. The denial likely won’t have much effect on the several remaining court battles involving Aereo and competitor FilmOn, broadcast attorneys told us, though a dissenting opinion from 2nd Circuit Judge Denny Chin could boost future broadcaster appeals. “They can use Chin’s dissent as a roadmap of sorts in formulating their arguments,” said Fletcher Heald’s Harry Cole, who’s not involved in the case. Fox “will now review our options and determine the appropriate course of action, which include seeking a hearing in the U.S. Supreme Court and proceeding to a full trial on the merits of the case,” said the 21st Century Fox subsidiary in a statement.
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Aereo’s system of tiny, individual antennas and DVRs is a “sham … designed solely to avoid the reach of the Copyright Act and take advantage of a perceived loophole in the law,” said Chin in his dissent. That echoed sentiments from his similar dissent in the original 2nd Circuit ruling against the injunction (CD April 2 p8). Chin said Tuesday the court is missing an opportunity to reconsider and limit its decision in Cablevision, a 2008 precursor case in which the court ruled that individual digital recordings of broadcast content were private rather than public performances, and therefore not subject to copyright law. “This decision upends settled industry expectations and established law,” wrote Chin. “It should not be permitted to stand, and the Court should have taken this opportunity to clarify that Cablevision does not provide ‘guideposts’ on how to avoid compliance with our copyright laws.” Aereo is “pleased” with the 2nd Circuit’s ruling, said the company in an email Tuesday.
It’s not likely that the Supreme Court would take up an appeal of the 2nd Circuit’s ruling on the broadcasters’ request for a preliminary injunction, with the rest of the case still undecided in U.S. District Court in Manhattan, several broadcast attorneys said. “The Supreme Court’s not going to hear a denial of injunction appeal unless there’s extraordinary circumstances,” said Pillsbury’s John Hane. “Then again, there’s no disadvantage” to the broadcasters asking the court to get involved, said Cole. A more likely scenario for Supreme Court involvement could come if another circuit rules opposite to the 2nd circuit, he said. A U.S. District court in California granted a similar injunction against Aereo competitor FilmOn -- formerly Aereokiller -- and hearings in FilmOn’s appeal of that decision to the 9th Circuit will begin in August. “That creates some tension between the courts,” Stifel analysts wrote investors Tuesday. “But we believe it would strengthen the broadcasters’ prospects even more if they could gain a preliminary injunction against Aereo in another circuit, creating a direct circuit split."
The resolution of the en banc appeal likely won’t have much influence on the several other cases involving Aereo and FilmOn, broadcast attorneys said. They said it adds ammunition to Aereo’s motion for summary judgment in the New York federal district court case from where the injunction request arose. Aereo is also fighting a motion to dismiss in a second case in the U.S. District Court, in which it’s the plaintiff and the major broadcasters are defendants. Aereo has asked for a declaratory judgment that its system doesn’t violate copyright.
Hearst Broadcasting filed a copyright infringement case against Aereo in U.S. District Court in Massachusetts last week, and has asked for another preliminary injunction preventing Aereo from streaming Hearst content, court filings said. FilmOn is battling broadcasters in U.S. District Court in Washington, D.C., and filed a counterclaim requesting a declaratory judgment in its favor earlier this month. Several broadcast attorneys said the future of many of these cases hinges on the appeals process for FilmOn in California. “The next big thing is what the 9th Circuit does with” FilmOn, said Cole.