Death Knell Sounds for Aereo in New York

      MANHATTAN (CN) – In a decision that bodes “the end of its business,” a federal judge granted major networks a preliminary injunction against the Internet broadcasting service Aereo.
     U.S. District Judge Alison Nathan forbid the company on Thursday “from streaming, transmitting, retransmitting, or otherwise publicly performing any copyrighted programming over the Internet (through websites such as aereo.com), or by means of any device or process throughout the United States of America.”
     “The court earlier found that Aereo would suffer significant hardship if an injunction issued as this would likely mean the end of its business,” the 17-page opinion states. “But, as the Second Circuit has held, ‘[i]t is axiomatic that an infringer of a copyright cannot complain about the loss of ability to offer its infringing product.'”
     Aereo has been fighting for its life since several television networks, including ABC, CBS and Fox, sued the company in March 2012 for allegedly infringing upon their broadcasts.
     The business used thousands of dime-sized antennae to provide each user with what it described as unique recorded copy of a broadcast. The networks called the technology a contrivance to evade copyright law.
     Aereo and the networks waged several rounds of appellate battles on both coasts that kept Aereo’s business model afloat during more than two years of litigation.
     After the Supreme Court found the site to have an “overwhelming likeness” to cable companies, Aereo tried “its best to turn lemons into lemonade” and argue that “it is in fact a cable system that should be entitled to a compulsory license,” Nathan said.
     But Aereo is not, in fact, a cable company, the judge found.
     It is a “fallacy that simply because an entity performs copyrighted works in a way similar to cable systems it must then be deemed a cable system for all other purposes of the Copyright Act,” the opinion states.
     “Logic dictates that plaintiffs should prevail on their request for a preliminary injunction without further ado,” Nathan added.
     When Nathan had initially refused to shut down the site back in 2012, she cited 2nd Circuit case law regarding the transmit clause.
     The case wound its way to the Supreme Court, where the justices sided with the networks, after the 2nd Circuit affirmed.
     In addition to rejecting the argument from Aero’s attorney, David Hosp, that his client’s business is entitled to a compulsory license under the Copyright Act as a “cable system,” Judge Nathan also tossed off his alternative argument that Aereo can be seen as a harmless conduit.
     Judge Nathan called the claims “novel,” and too late in the game.
     “To begin with, Aero’s argument suffers from the fallacy that simply because an entity performs copyrighted works in a way similar to cable systems it must then be deemed a cable system for all other purposes of the Copyright Act,” she said. “The Supreme Court’s opinion … avoided any such holding.”

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