Today’s legal arguments in Boston mark the latest round of litigation between television networks and technological services over providing consumers a means to access free, over-the-air broadcasts via the Internet.
These lawsuits explore the difference between private and public performances, only the latter of which is an exclusive right under the U.S. Copyright Act (17 U.S.C. § 106). Cases are now proceeding in four U.S. jurisdictions, against two separate services, Aereo, a New York-based startup, and FilmOn X (formerly known as FilmOn, Aereokiller, and BarryDriller), a service based in Beverly Hills.
While the Aereo and FilmOn X cases are frequently discussed together, they should not be conflated, as the legal records have not yet established that the services operate in identical ways. The two district court decisions against FilmOn X have pointed out some differences [1 at n.4], [2 at n.5], and neither the LA court nor the D.C. court have applied the pro-Aereo precedent from New York. Regardless of potential factual differences, both services rely heavily on the 2008 Cablevision precedent in the Second Circuit in their legal arguments.
As the graphic below illustrates, there is now the possibility of three additional (and potentially conflicting) appellate court rulings on Internet-based tools for broadcast access. This is why some have speculated about the potential for Supreme Court review. At present, this is where the cases stand, in reverse chronological order:
(1) Massachusetts: Today’s oral arguments in the District Court of Massachusetts involve Aereo’s motion to transfer the case to the Southern District of New York, where its service has already been found not to infringe the networks’ public performance right, and Hearst Stations’ motion for a preliminary injunction to prevent Aereo from allegedly infringing its copyrights pending resolution of the litigation. [SEPTEMBER 19 UPDATE: According to the Boston Globe, after yesterday's oral argument, the Judge is leaning toward Aereo, as he "said he was predisposed to deny the TV station’s request," and will decide on the injunction by the end of September.]
(2) D.C.: Two weeks ago, the D.C. District Court issued a preliminary injunction covering not just D.C., but all districts except for the Second Circuit, where Aereo is already legal. Last week, FilmOn X filed a motion for the D.C. District Court to reconsider this remedy.
(4) New York: In April, the Aereo won in the Second Circuit. In July, the Second Circuit refused to rehear the case en banc. Aereo remains lawful in New York, pending possible Supreme Court review. (DisCo has previously written about the Aereo litigation in New York, including here on their July win and here on their April win.)