A Utah district court has granted Fox's motion for a preliminary injunction against Aereo, saying it was likely to prevail on its copyright claim.
At the request of Fox and Aereo, the Supreme Court is currently considering whether to uphold a Second Circuit Court of Appeals decision declining to enjoin Aereo. Multiple district courts have weighed in on injunctions, both for and against, but the underlying case has yet to be decided. That being whether Aereo is impermissibly transmitting a copyrighted performance without compensation or is providing subs with remote access to antennas and recording functionality.
The court concluded that Fox and the other complainants are "likely to succeed on the merits of their copyright infringement claims and that they will be irreparably harmed if a preliminary injunction does not issue."
"Therefore, the court finds that the requested stay pending the Supreme Court’s decision in ABC v. Aereo should and will be entered with a preliminary injunction in place to protect Plaintiffs’ copyrighted works," wrote District court Judge Dale Kimball.
"This is a significant win for both broadcasters and content owners. We are very pleased that the U.S. District Court in Utah has granted our request for a preliminary injunction," Fox said. "This injunction will prohibit Aereo from stealing our broadcast signal in Utah, New Mexico, Colorado, Oklahoma, Wyoming and Montana."
The Utah court said it was more persuaded by the dissenting arguments of Second Circuit Judge Denny Chin about the differences between the Aereo case and the Second Circuit's decision that Cablevision was not violating copyright by allowing for remote recording of cable channels.
Judge Chin said, and Judge Kimball cited in his opinion, that: "Cablevision involved a cable company that paid statutory licensing and retransmission consent fees for the content it retransmitted, while Aereo pays no such fees."
Moreover, the subscribers in Cablevision already had the ability to view television programs in real-time through their authorized cable subscriptions, and the remote digital video recording service at issue there was a supplemental service that allowed subscribers to store that authorized content for later viewing. In contrast, no part of Aereo’s system is authorized. Instead, its storage and time-shifting functions are an integral part of an unlicensed retransmission service that captures broadcast television programs and streams them over the Internet.”
As to arguments that Fox and others would not suffer irreparable harm--Aereo pointed to broadcasters own statements that Aereo's infringement was a drop in the bucket--Kimball said the amount was essentially beside the point, then listed a litany of harms.
"If Aereo were permitted to continue to infringe Plaintiffs' copyrights during the pendency of this litigation," Kimball wrote, "Aereo’s infringement will interfere with Plaintiffs’ relationships and negotiations with legitimate licensees, impede and effect Plaintiff’s negotiations with advertisers, unfairly siphon viewers from Plaintiffs’ own websites, threaten Plaintiffs’ goodwill and contractual relationships with Plaintiffs’ licensed internet distributors, lose their position in the competitive marketplace for Internet content, and cause Plaintiffs to lose control of quality and potential piracy of its programming. All of these potential harms are intangible factors that support a finding of irreparable harm."
"We are extremely disappointed that the District Court in Utah has chosen to take a different path than every other Court that has reviewed the Aereo technology," said Aereo founder and CEO Chet Kanojia. "Consumers have a fundamental right to watch over the air broadcast television via an antenna and to record copies for their personal use. The Copyright Act provides no justification to curtail that right simply because the consumer is using modern, remotely located equipment.
"We are very sorry for the effect on our valued customers in the Tenth Circuit and we will pursue all available remedies to restore their ability to use Aereo."
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.