Crucial Victory for Aereo in Massachusetts Court

     (CN) – Joining the 2nd Circuit in siding with the Internet television company Aereo, a federal judge refused to let a Boston television station enjoin the streaming service.
     Major broadcast networks have been locked in ongoing litigation with Aereo, owned by Coca-Cola director Barry Diller, ever since his subscription service debuted in major cities last year.
     About six months ago, a divided three-judge panel of the 2nd Circuit in New York rejected the networks’ copyright claims against Aereo.
     That ruling was at odds, however, with the more recent nationwide injunction that a federal judge in Washington, D.C., issued a against Aereo competitor Film On X’s paid subscription service, barring it from streaming live TV shows over the Internet using a similar mini-antenna technology.
     In another setback for Film On X’s billionaire owner, Alki David, a New York federal judge ruled last month that the Internet TV service violated a settlement and court injunction by streaming the networks’ programs. Film On X, formerly known as Aereokiller, is also awaiting word from the 9th Circuit after a hearing in August.
     Aereo continues to fare better in the courts, after U.S. District Judge Nathaniel Gordon last week refused to enjoin Aereo from streaming the original programming of ABC affiliate, WCVB-TV in Boston.
     WCVB owner Hearst Stations had sued Aereo in July for an injunction.
     Gordon relied on the majority’s 2nd Circuit decision to side with Aereo. He ruled that the company had persuasively argued that its service does not transmit a public performance of the television station’s programming under the Transmit Clause of the Copyright Act.
     Neither does it appear that Aereo is infringing on the television station’s exclusive right to reproduce or distribute its programming to the public, the judge said.
     “Here, Aereo’s technology allows users to stream but not download programming. As such, Aereo is more aptly described as ‘performing’ than ‘distributing’ copyrighted works,” Judge Gordon wrote.
     The specter of cable customers canceling to switch to Aereo, or the station losing the retransmission fees cable companies pay is a long way off, according to the ruling. Judge Gordon predicted that any harm “will take several years to materialize.”
     In the same way, the judge was not persuaded that Aereo irreparably damages the television station’s ability to generate advertising revenue.
     “Hearst’s claim that WCVB will not be able to measure viewers who access its programming through Aereo is simply not true,” the 20-page order states. “Nielsen, one of the main organizations tracking viewership for such purposes, announced in February, 2013, that it is beginning to include online viewership in its viewership totals.”
     WCVB’s has not sufficiently developed a plan to offer online programming to merit an injunction, the judge found.
     Though the Southern District of New York is handling two similar cases against Diller’s company, Gordon refused to let Aereo move the case there.
     “Hearst’s decision to limit the scope of the suit to WCVB’s local programming and Aereo’s local activities also weighs in favor of resolving the suit here rather than in New York,” Gordon wrote.
     WCVB-TV told The Hollywood Reporter it was glad the case will stay in Boston.
     “We will immediately appeal the court’s decision that allows Aereo to continue to engage in a commercial business that unlawfully profits by using WCVB’s copyrighted broadcasts and shows,” a station spokesperson said. “We expect to prevail in this case.”
     Meanwhile the networks are reportedly preparing to appeal the 2nd Circuit’s denial of an injunction against Aereo to the Supreme Court.

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